Re Tucks Settlement Trusts

CASE OF AL NASHIRI v. ROMANIA

(Application no. 33234/12 )

JUDGMENT

STRASBOURG

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

PROCEDURE

THE FACTS

I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS

II. EVIDENCE BEFORE THE COURT

III. BACKGROUND TO THE CASE

A. Terrorist attacks of which the applicant has been suspected

B. The so-called "High-Value Detainee Programme"

(a) The US President's memoranda

(i) Memorandum of 17 September 2001

(ii) Memorandum of 7 February 2002

(b) Abu Zubaydah's capture and transfer to a CIA covert detention facility in March 2002

(c) Setting up the CIA programme "to detain and interrogate terrorists at sites abroad"

(a) Description of legally sanctioned standard and enhanced interrogation techniques

(b) Expanding the use of the EITs beyond Abu Zubaydah's interrogations

C. The United States Supreme Court's judgment in Rasul v. Bush

D. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations

E. Military Commissions

F. Review of the CIA's activities involved in the HVD Programme in 2001-2009 by the US Senate

IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. The applicant's capture, transfer to the CIA's custody, his secret detention and transfers from mid-October 2002 to 6 June 2003, as established by the Court in Al Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report

B. The applicant's transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

C. The applicant's alleged secret detention at a CIA "black site" in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

D. The applicant's further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

E. The applicant's detention in Guantánamo Bay and his trial before the military commission from 6 September 2006 to present

F. Psychological effects of the HVD Programme on the applicant

G. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts

H. "Detention Site Black" in the 2014 US Senate Committee Report

I. Parliamentary inquiry in Romania

J. Criminal investigation in Romania

V. RELEVANT DOMESTIC LAW

A. Criminal Code

B. Code of Criminal Procedure

VI. RELEVANT INTERNATIONAL LAW

A. Vienna Convention on the Law of Treaties

Article 26 "Pacta sunt servanda"

Article 27 Internal law and observance of treaties

B. International Covenant on Civil and Political Rights

C. The UN Torture Convention

D. UN Geneva Conventions

E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts

F. UN General Assembly Resolution 60/147

VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001

A. United Nations

B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003

C. International non-governmental organisations

VIII. SELECTED MEDIA REPORTS AND ARTICLES

A. International media

B. Romanian media

C. Der Spiegel's publications in 2014 and 2015

IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA

A. Council of Europe

(a) The 2006 Marty Report

(b) The 2007 Marty Report

(c) The 2011 Marty Report

B. European Parliament

C. The 2007 ICRC Report

D. United Nations

X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT

A. Transcript of witness X's statement made on 18 September 2013

B. Transcript of testimony given by witness Y on 4 May 2015

C. Transcript of witness Z's statement made on 17 September 2013

D. Transcript of testimony given by witness Z on 18 June 2015

E. Transcripts of statements from other witnesses

XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT

A. RCAA letter of 29 July 2009

B. List of twenty-one "suspicious flights" produced by the Government

C. Documents concerning the N313P rendition mission on 16-28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation

D. The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts)

E. Mr Hammarberg's affidavit of 17 April 2013

Affidavit of Thomas Hammarberg

F. Dossier (Memorandum) of 30 March 2012 provided by Mr Hammarberg to the Romanian Prosecutor General (extracts)

G. Mr Hammarberg's replies to questions put to him in writing by the Court and the parties

H. Senator Marty's affidavit of 24 April 2013

I. The 2015 LIBE Briefing

XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT

A. Mr Fava

B. Presentation by Senator Marty and Mr J.G.S. "Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri"

C. Senator Marty

D. Mr J.G.S.

E. Mr Black

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION

A. Romania's lack of jurisdiction and responsibility under the Convention in respect of the applicant's alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania

B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule

(a) Non-exhaustion of domestic remedies

(b) Non-compliance with the six-month term

(a) Non-exhaustion of domestic remedies

(b) Non-compliance with the six-month rule

II. THE COURT'S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE

A. The parties' positions on the facts and evidence

(a) Lack of evidence demonstrating that a CIA "black site" operated in Romania

(i) Contradictory statements as to the "life cycle" of the alleged CIA "black site" in Romania

(ii) Contradictory statements as to the location of the alleged CIA "black site" in Romania

(b) Inconsistencies in the applicant's account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania

(c) Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe's Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents

(d) Lack of evidence demonstrating that certain planes landing in Romania between 22 September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions

(e) Lack of evidence demonstrating that the Romanian authorities entered into "secret cooperation agreements" with the CIA and cooperated in the execution of the HVD Programme

(f) Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights

(g) Lack of evidence of Romania's knowledge of the CIA HVD Programme at the material time

(a) As regards the existence of a CIA secret detention facility in Romania and the applicant's secret detention in Romania

(b) As regards the alleged inconsistencies in the applicant's account regarding the dates of his rendition to and from Romania and his secret detention in Romania

(c) As regards the planes landing in Romania between 22 September 2003 and 5 November 2005

(d) As regards the Government's allegation of a lack of credibility of sources of information and evidence

(e) As regards Romania's' cooperation with the CIA and its complicity in the HVD Programme

(f) As regards Romania's knowledge of the HVD Programme at the material time

B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of the US practices in respect of captured terrorist suspects

C. The parties' positions on the standard and burden of proof

D. The Court's assessment of the facts and evidence

(a) Period from mid-October 2002 to 6 June 2003

(b) Whether the applicant's allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo) were proved before the Court

(a) Whether a CIA detention facility existed in Romania at the time alleged by the applicant (22 September 2003 - beginning of November 2005)

(b) Whether the applicant's allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12 April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court

(i) Preliminary considerations

(ii) Transfers and secret detention

(iii) The applicant's treatment in CIA custody in Romania

(a) Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a "subsidy" from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme

(i) Agreement to host a CIA detention facility, request for and acceptance of a "subsidy" from the CIA and provision of premises for the CIA

(ii) Acquiescence with some elements of the HVD Programme

(b) Assistance in disguising the CIA rendition aircraft's routes through Romania by means of the so-called "dummy" flight planning

(c) Special procedure for CIA flights

(d) Informal transatlantic meeting

(e) Circumstances routinely surrounding HVDs transfers and reception at the CIA "black site"

(f) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005

III. ROMANIA'S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION

A. The parties' submissions

B. The Court's assessment

IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

A. Procedural aspect of Article 3

(a) The Government

(b) The applicant

(a) The UN Special Rapporteur

(b) APADOR-CH

(c) Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on "effective investigation"

(d) Media Groups

(a) Admissibility

(b) Merits

(i) Applicable general principles deriving from the Court's case-law

(ii) Application of the above principles to the present case

B. Substantive aspect of Article 3

(a) The Government

(b) The applicant

(a) Admissibility

(b) Merits

(i) Applicable general principles deriving from the Court's case-law

(ii) Application of the above principles to the present case

(a) Treatment to which the applicant was subjected at the relevant time

(β) Court's conclusion as to Romania's responsibility

V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

A. The parties' submissions

B. The Court's assessment

VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 6 TO THE CONVENTION

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION

A. The parties' submissions

B. The Court's assessment

XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

A. Damage

B. Costs and expenses

C. Default interest

ANNEX I: List of abbreviations used in the Court's judgment

ANNEX II: List of references to the Court's case-law

In the case of Al Nashiri v. Romania,

Linos-Alexandre Sicilianos, President, Kristina Pardalos, Robert Spano, Aleš Pejchal, Mirjana Lazarova Trajkovska, Paul Mahoney, judges, Florin Streteanu, ad hoc judge, and Abel Campos, Section Registrar,

PROCEDURE

(a) for the Government

Mrs C. Brumar , Agent of the Government, Ministry of Foreign Affairs, Mrs A.-L. Rusu , Chargé d'affaires a.i., Deputy to the Permanent Representative of Romania to the Council of Europe, Counsel, Mrs M. Ludușan , judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr V.H.D. Constantinescu , judge seconded to the Agent of the Government before the European Court of Human Rights, Ministry of Foreign Affairs, Counsel, Mr R. Bodnar , Bucharest Airports National Company, Counsel, Mr M. Simionis , Romanian Civil Aviation Authority, Counsel , Mr A. Ștefan , Romanian Air Traffic Services Administration, Counsel ;

(b) for the applicant

Mr R. Skilbeck , Counsel, Ms A. Singh , Counsel, Ms D.-O . Hatneanu , Counsel , Ms N. Hollander , Adviser .

The Court heard addresses by Ms Brumar, Ms Luduşan, Ms Singh and Ms Hatneanu.

THE FACTS

I. PRELIMINARY CONSIDERATIONS REGARDING THE ESTABLISHMENT OF THE FACTS

II. EVIDENCE BEFORE THE COURT

III. BACKGROUND TO THE CASE

A. Terrorist attacks of which the applicant has been suspected

B. The so-called "High-Value Detainee Programme "

(a) The US President's memoranda

(i) Memorandum of 17 September 2001

(ii) Memorandum of 7 February 2002

"...

a. I accept the legal conclusion of the Department of Justice and determine that none of the provisions of Geneva apply to our conflict with al-Qaida in Afghanistan or elsewhere throughout the world because, among other reasons, al-Qaida is not a High Contracting Party to Geneva.

...

c. I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of Geneva does not apply to either al-Qaida or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to armed conflict not of an international character.

d. Based on the facts supplied by the Department of Defense and the recommendation of the Department of Justice, I determine that the Taliban detainees are unlawful combatants and, therefore, do not qualify as prisoners of war under Article 4 of Geneva. I note that, because Geneva does not apply to our conflict with al-Qaida, al-Qaida detainees also do not qualify as prisoners of war.

...

(b) Abu Zubaydah's capture and transfer to a CIA covert detention facility in March 2002

"Shortly thereafter, Abu Zubaydah was rendered from Pakistan to Country [name REDACTED] where he was held at the first CIA detention site, referred to in this summary as 'DETENTION SITE GREEN'."

(c) Setting up the CIA programme "to detain and interrogate terrorists at sites abroad"

"4. [REDACTED] the Agency began to detain and interrogate directly a number of suspected terrorists. The capture and initial Agency interrogation of the first high-�value detainee, Abu Zubaydah, in March 2002, presented the Agency with a significant dilemma. The Agency was under pressure to do everything possible to prevent additional terrorist attacks. Senior Agency officials believed Abu Zubaydah was withholding information that could not be obtained through then-authorized interrogation techniques. Agency officials believed that a more robust approach was necessary to elicit threat information from Abu Zubaydah and possibly from other senior Al'Qaeda high value detainees.

(a) Description of legally sanctioned standard and enhanced interrogation techniques

" [1.] The attention grasp consists of grasping the detainee with both hands, with one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the detainee is drawn toward the interrogator.

[2.] During the walling technique, the detainee is pulled forward and then quickly and firmly pushed into a flexible false wall so that his shoulder blades hit the wall. His head and neck are supported with a rolled towel to prevent whiplash.

[3.] The facial hold is used to hold the detainee's head immobile. The interrogator places an open palm on either side of the detainee's face and the interrogator's fingertips are kept well away from the detainee's eyes.

[4.] With the facial or insult slap, the fingers are slightly spread apart. The interrogator's hand makes contact with the area between the tip of the detainee's chin and the bottom of the corresponding earlobe.

[5.] In cramped confinement, the detainee is placed in a confined space, typically a small or large box, which is usually dark. Confinement in the smaller space lasts no more than two hours and in the larger space it can last up to 18 hours.

[6.] Insects placed in a confinement box involve placing a harmless insect in the box with the detainee.

[7.] During wall standing, the detainee may stand about 4 to 5 feet from a wall with his feet spread approximately to his shoulder width. His arms are stretched out in front of him and his fingers rest on the wall to support all of his body weight. The detainee is not allowed to reposition his hands or feet.

[8.] The application of stress positions may include having the detainee sit on the floor with his legs extended straight out in front of him with his arms raised above his head or kneeling on the floor while leaning back at a 45 degree angle.

[9.] Sleep deprivation will not exceed 11 days at a time.

[10.] The application of the waterboard technique involves binding the detainee to a bench with his feet elevated above his head. The detainee's head is immobilized and an interrogator places a cloth over the detainee's mouth and nose while pouring water onto the cloth in a controlled manner. Airflow is restricted for 20 to 40 seconds and the technique produces the sensation of drowning and suffocation."

"The issue how to approach interrogations reportedly came to a head after the capture of a senior al'Qaeda leader, Abu Zubaydah, during a raid in Faisalabad, Pakistan, in late March 2002. Abu Zubaydah was transported to a 'black site', a secret CIA prison facility [REDACTED] where he was treated for gunshot wounds he suffered during his capture. ..."

(b) Expanding the use of the EITs beyond Abu Zubaydah's interrogations

"... the [Torture] Convention permits the use of [cruel, inhuman, or degrading treatment] in exigent circumstances, such as a national emergency or war. ...the interrogation of Al'Qaeda members does not violate the Fifth and Fourteenth Amendments because those provisions do not apply extraterritorially, nor does it violate the Eighth Amendment because it only applies to persons upon whom criminal sanctions have been imposed. ...

The use of the following techniques and of comparable, approved techniques does not violate any Federal statute or other law, where the CIA interrogators do not specifically intend to cause the detainee to undergo severe physical or mental pain or suffering (i.e., they act with the good faith belief that their conduct will not cause such pain or suffering): isolation, reduced caloric intake (so long as the amount is calculated to maintain the general health of the detainees), deprivation of reading material, loud music or white noise (at a decibel level calculated to avoid damage to the detainees' hearing), the attention grasp, walling, the facial hold, the facial slap (insult slap), the abdominal slap, cramped confinement, wall standing, stress positions, sleep deprivation, the use of diapers, the use of harmless insects, and the water board."

"a. The HVD is flown to a Black Site. A medical examination is conducted prior to the flight. During the flight, the detainee is securely shackled and is deprived of sight and sound through the use of blindfolds, earmuffs, and hoods. [REDACTED] There is no interaction with the HVD during this rendition movement except for periodic, discreet assessments by the on-board medical officer

b. Upon arrival at the destination airfield, the HVD is moved to the Black Site under the same conditions and using appropriate security procedures."

"The HVD is subjected to administrative procedures and medical assessment upon arrival at the Black Site. [REDACTED] the HVD finds himself in the complete control of Americans; [REDACTED] the procedures he is subjected to are precise, quiet, and almost clinical; and no one is mistreating him. While each HVD is different, the rendition and reception process generally creates significant apprehension in the HVD because of the enormity and suddenness of the change in environment, the uncertainty about what will happen next, and the potential dread an HVD might have of US custody. Reception procedures include:

a. The HVD's head and face are shaved.

b. A series of photographs are taken of the HVD while nude to document the physical condition of the HVD upon arrival.

c. A Medical Officer interviews the HVD and a medical evaluation is conducted to assess the physical condition of the HVD. The medical officer also determines if there are any contra indications to the use of interrogation techniques.

d. A psychologist interviews the HVD to assess his mental state. The psychologist also determines if there are any contra indications to the use of interrogation techniques."

"Interrogators use the Initial Interview to assess the initial resistance posture of the HVD and to determine - in a relatively benign environment - if the HVD intends to willingly participate with CIA interrogators. The standard on participation is set very high during the Initial Interview. The HVD would have to willingly provide information on actionable threats and location information on High-Value Targets at large not lower level information for interrogators to continue with the neutral approach. [REDACTED] to HQS. Once approved, the interrogation process begins provided the required medical and psychological assessments contain no contra indications to interrogation."

(1) The part dealing with the "existing detention conditions" reads:

"Detention conditions are not interrogation techniques, but they have an impact on the detainee undergoing interrogation. Specifically, the HVD will be exposed to white noise/loud sounds (not to exceed 79 decibels) and constant light during portions of the interrogation process. These conditions provide additional operational security: white noise/loud sounds mask conversations of staff members and deny the HVD any auditory clues about his surroundings and deter and disrupt the HVD's potential efforts to communicate with other detainees. Constant light provides an improved environment for Black Site security, medical, psychological, and interrogator staff to monitor the HVD."

"The HVD is typically reduced to a baseline, dependent state using the three interrogation techniques discussed below in combination. Establishing this baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of these conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific conditioning interrogation techniques are

a. Nudity . The HVD's clothes are taken and he remains nude until the interrogators provide clothes to him.

b. Sleep Deprivation . The HVD is placed in the vertical shackling position to begin sleep deprivation. Other shackling procedures may be used during interrogations. The detainee is diapered for sanitary purposes; although the diaper is not used at all times.

c. Dietary manipulation . The HVD is fed Ensure Plus or other food at regular intervals. The HVD receives a target of 1500 calories per day per OMS guidelines."

(3) The "corrective techniques", which were applied in combination with the "conditioning techniques", are defined as those requiring "physical interaction between the interrogator and detainee" and "used principally to correct, startle, or to achieve another enabling objective with the detainee". They are described as follows:

"These techniques - the insult slap , abdominal slap , facial hold , and attention grasp - are not used simultaneously but are often used interchangeably during an individual interrogation session. These techniques generally are used while the detainee is subjected to the conditioning techniques outlined above (nudity, sleep deprivation, and dietary manipulation). Examples of application include:

a. The insult slap often is the first physical technique used with an HVD once an interrogation begins. As noted, the HVD may already be nude, in sleep deprivation, and subject to dietary manipulation, even though the detainee will likely feel little effect from these techniques early in the interrogation. The insult slap is used sparingly but periodically throughout the interrogation process when the interrogator needs to immediately correct the detainee or provide a consequence to a detainee's response or non-response. The interrogator will continually assess the effectiveness of the insult slap and continue to employ it so long as it has the desired effect on the detainee. Because of the physical dynamics of the various techniques, the insult slap can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical.

b. Abdominal Slap . The abdominal slap is similar to the insult slap in application and desired result. It provides the variation necessary to keep a high level of unpredictability in the interrogation process. The abdominal slap will be used sparingly and periodically throughout the interrogation process when the interrogator wants to immediately correct the detainee [REDACTED], and the interrogator will continually assess its effectiveness. Because of the physical dynamics of the various techniques, the abdominal slap can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical,

c. Facial Hold . The facial hold is a corrective technique and is used sparingly throughout interrogation. The facial hold is not painful and is used to correct the detainee in a way that demonstrates the interrogator's control over the HVD [REDACTED]. Because of the physical, dynamics of the various techniques, the facial hold can be used in combination with water dousing, stress positions, and wall standing. Other combinations are possible but may not be practical.

d. Attention Grasp .It may be used several times in the same interrogation. This technique is usually applied [REDACTED] grasp the HVD and pull him into close proximity of the interrogator (face to face). Because of the physical dynamics of the various techniques, the attention grasp can be used in combination with water dousing or kneeling stress positions. Other combinations are possible but may not be practical."

(4) The "coercive techniques", defined as those placing a detainee "in more physical and psychological stress and therefore considered more effective tools in persuading a resistant HVD to participate with CIA interrogators", are described as follows:

"These techniques - walling , water dousing , stress positions , wall standing , and cramped confinement - are typically not used in combination, although some combined use is possible. For example, an HVD in stress positions or wall standing can be water doused at the same time. Other combinations of these techniques may be used while the detainee is being subjected to the conditioning techniques discussed above (nudity, sleep deprivation, and dietary manipulation). Examples of coercive techniques include:

a. Walling. Walling is one of the most effective interrogation techniques because it wears down the HVD physically, heightens uncertainty in the detainee about what the interrogator may do to him, and creates a sense of dread when the HVD knows he is about to be walled again. [REDACTED] interrogator [REDACTED]. An HVD may be walled one time (one impact with the wall) to make a point or twenty to thirty times consecutively when the interrogator requires a more significant response to a question. During an interrogation session that is designed to be intense, an HVD will be walled multiple times in the session. Because of the physical dynamics of walling, it is impractical to use it simultaneously with other corrective or coercive techniques.

b. Water Dousing . The frequency and duration of water dousing applications are based on water temperature and other safety considerations as established by OMS guidelines. It is an effective interrogation technique and may be used frequently within those guidelines. The physical dynamics of water dousing are such that it can be used in combination with other corrective and coercive techniques. As noted above, an HVD in stress positions or wall standing can be water doused. Likewise, it is possible to use the insult slap or abdominal slap with an HVD during water dousing.

c. Stress Positions . The frequency and duration of use of the stress positions are based on the interrogator's assessment of their continued effectiveness during interrogation. These techniques are usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the stress position after a period of time. Stress positions requiring the HVD to be in contact with the wall can be used in combination with water dousing and abdominal slap. Stress positions requiring the HVD to kneel can be used in combination with water dousing, insult slap, abdominal slap, facial hold, and attention grasp.

d. Wall Standing . The frequency and duration of wall standing are based on the interrogator's assessment of its continued effectiveness during interrogation. Wall standing is usually self-limiting in that temporary muscle fatigue usually leads to the HVD being unable to maintain the position after a period of time. Because of the physical dynamics of the various techniques, wall standing can be used in combination with water dousing and abdominal slap. While other combinations are possible, they may not be practical.

e. Cramped Confinement . Current OMS guidance on the duration of cramped confinement limits confinement in the large box to no more than 8 hours at a time for no more than 18 hours a day, and confinement in the small box to 2 hours. [REDACTED] Because of the unique aspects of cramped confinement, it cannot be used in combination with other corrective or coercive techniques."

"... [B]y requiring advance approval of 'standard techniques' whenever feasible, the guidelines allowed CIA officers a significant amount of discretion to determine who could be subjected to the CIA's 'standard' interrogation techniques, when those techniques could be applied, and when it was not 'feasible' to request advance approval from CIA Headquarters. Thus, consistent with the interrogation guidelines, throughout much of 2003, CIA officers (including personnel not trained in interrogation) could, at their discretion, strip a detainee naked, shackle him in the standing position for up to 72 hours, and douse the detainee repeatedly with cold water without approval from CIA Headquarters if those officers judged CIA Headquarters approval was not 'feasible'. In practice, CIA personnel routinely applied these types of interrogation techniques without obtaining prior approval."

"... the CIA detainees are in constantly illuminated cells, substantially cut off from human contact, and under 24-hour-a-day surveillance. We also recognize that many of the detainees have been in the program for several years and thus that we cannot evaluate these conditions as if they have occurred only for a passing moment ... .

Nevertheless, we recognize that the isolation experienced by the CIA detainees may impose a psychological toll. In some cases, solitary confinement may continue for years and may alter the detainee's ability to interact with others. ..."

C. The United States Supreme Court's judgment in Rasul v. Bush

"United States courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in connection with hostilities and incarcerated at Guantánamo Bay.

(a) The District Court has jurisdiction to hear petitioners' habeas challenges under 28 U.S.C. § 2241, which authorizes district courts, within their respective jurisdictions, to entertain habeas applications by persons claiming to be held in custody in violation of the ... laws ... of the United States, §§ 2241(a), (c)(3).

Such jurisdiction extends to aliens held in a territory over which the United States exercises plenary and exclusive jurisdiction, but not ultimate sovereignty. ..."

D. Role of Jeppesen Dataplan, Richmor Aviation and other air companies in the CIA rendition operations

"Within the context of the extraordinary renditions, the CIA had often used private companies and charter services for aircraft rentals. Through the civil aviation it is possible to reach places where the military aircraft would be seen suspiciously. Thanks to the civil aviation, the CIA avoids the duty to provide the information required by States concerning government or military flights.

Most of these companies are the so-called shell companies: they only exist on papers (post offices boxes, for instance) or they have a sole employee (normally a lawyer). These shell companies appear the owners of some aircrafts which are systematically object of buy-and-sell operations. After each transaction, planes are re-registered in order to [lose] their tracks. ...

Sometimes shell companies used by CIA rely on other real companies endowed with premises and employees (so called: operating companies). These companies are entrusted to stand behind the shell companies; they provide the CIA aircrafts with all necessary logistics (pilots, catering, technical assistance). In some cases the operating companies are directly linked to the CIA. One example is Aero Contractor, a company described by the New York Times as the 'major domestic hub of the Central Intelligence Agency's secret air service'.

The system is well described by the New York Times:

' An analysis of thousands of flight records, aircraft registrations and corporate documents, as well as interviews with former C.I.A. officers and pilots, show that the agency owns at least 26 planes, 10 of them purchased since 2001. The agency has concealed its ownership behind a web of seven shell corporations that appear to have no employees and no function apart from owning the aircraft. The planes, regularly supplemented by private charters, are operated by real companies controlled by or tied to the agency, including Aero Contractors and two Florida companies, Pegasus Technologies and Tepper Aviation.'

Finally, in other cases, the CIA leases airplanes from normal charter agents, as it is the case for Richmor Aviation. Richmor Aviation is one of the oldest charter and flight management companies. The Gulfstream IV, N85VM belongs to Richmor Aviation (plane involved in the abduction of Abu Omar).

Ultimately, in this inextricable net, there is also the possibility that single aircrafts change their registration numbers (as for the Gulfstream V, from Richmor Aviation, registered as N379P, then, N8068V and then N44982).

There are indeed 51 airplanes alleged to be used in the extraordinary renditions, but, according the Federal Aviation Administration records, there would be 57 registration numbers. It comes out that some of them are registered more than once.

Among the 51 airplanes alleged to be used by CIA:

The other 15 planes are from occasional rental from private companies working with CIA as well as with other customers."

E. Military Commissions

The relevant parts of the order read as follows:

"Sec. 2. Definition and Policy .

(a) The term 'individual subject to this order' shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaeda;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order; and

(2) it is in the interest of the United States that such individual be subject to this order.

(b) It is the policy of the United States that the Secretary of Defense shall take all necessary measures to ensure that any individual subject to this order is detained in accordance with section 3, and, if the individual is to be tried, that such individual is tried only in accordance with section 4.

(c) It is further the policy of the United States that any individual subject to this order who is not already under the control of the Secretary of Defense but who is under the control of any other officer or agent of the United States or any State shall, upon delivery of a copy of such written determination to such officer or agent, forthwith be placed under the control of the Secretary of Defense. ...

Sec. 3 Detention Authority of the Secretary of Defense. Any individual subject to this order shall be -�

(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States; ...

Sec.4 Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order

(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death."

"2. ESTABLISHMENT OF MILITARY COMMISSIONS

In accordance with the President's Military Order, the Secretary of Defense or a designee (Appointing Authority') may issue orders from time to time appointing one or more military commissions to try individuals subject to the President's Military Order and appointing any other personnel necessary to facilitate such trials.

A. Members

(1) Appointment

The Appointing Authority shall appoint the members and the alternate member or members of each Commission. ...

(2) Number of Members

Each Commission shall consist of at least three but no more than seven members, the number being determined by the Appointing Authority. ...

(3) Qualifications

Each member and alternate member shall be a commissioned officer of the United States armed forces ('Military Officer'), including without limitation reserve personnel on active duty, National Guard personnel on active duty in Federal service, and retired personnel recalled to active duty. ...

...

B. Duties of the Commission during Trial

The Commission shall:

(1) Provide a full and fair trial.

(2) Proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence, and preventing any unnecessary interference or delay.

(3) Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President's Military Order and this Order. Grounds for closure include the protection of information classified or classifiable under reference (d); information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Presiding Officer may decide to close all or part of a proceeding on the Presiding Officer's own initiative or based upon a presentation, including an ex parte , in camera presentation by either the Prosecution or the Defense. A decision to close a proceeding or portion thereof may include a decision to exclude the Accused, Civilian Defense Counsel, or any other person, but Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof. Except with the prior authorization of the Presiding Officer and subject to Section 9, Defense Counsel may not disclose any information presented during a closed session to individuals excluded from such proceeding or part thereof. Open proceedings may include, at the discretion of the Appointing Authority, attendance by the public and accredited press, and public release of transcripts at the appropriate time. Proceedings should be open to the maximum extent practicable. Photography, video, or audio broadcasting, or recording of or at Commission proceedings shall be prohibited, except photography, video, and audio recording by the Commission pursuant to the direction of the Presiding Officer as necessary for preservation of the record of trial.

...

D. Evidence

(1) Admissibility

Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if any other member of the Commission so requests at the time the Presiding Officer renders that opinion, the opinion of the Commission rendered at that time by a majority of the Commission), the evidence would have probative value to a reasonable person.

(5) Protection of Information

(a) Protective Order

The Presiding Officer may issue protective orders as necessary to carry out the Military Order and this Order, including to safeguard 'Protected Information', which includes:

(i) information classified or classifiable pursuant to reference (d);

(ii) information protected by law or rule from unauthorized disclosure;

(iii) information the disclosure of which may endanger the physical safety of participants in Commission proceedings, including prospective witnesses;

(iv) information concerning intelligence and law enforcement sources, methods, or activities; or (v) information concerning other national security interests. As soon as practicable, counsel for either side will notify the Presiding Officer of any intent to offer evidence involving Protected Information.

(b) Limited Disclosure

The Presiding Officer, upon motion of the Prosecution or sua sponte , shall, as necessary to protect the interests of the United States and consistent with Section 9, direct

(i) the deletion of specified items of Protected Information from documents to be made available to the Accused, Detailed Defense Counsel, or Civilian Defense Counsel;

(ii) the substitution of a portion or summary of the information for such Protected Information; or

(iii) the substitution of a statement of the relevant facts that the Protected Information would tend to prove.

The Prosecution's motion and any materials submitted in support thereof or in response thereto shall, upon request of the Prosecution, be considered by the Presiding Officer ex parte, in camera , but no Protected Information shall be admitted into evidence for consideration by the Commission if not presented to Detailed Defense Counsel.

...

G. Sentence

Upon conviction of an Accused, the Commission shall impose a sentence that is appropriate to the offense or offenses for which there was a finding of Guilty, which sentence may include death, imprisonment for life or for any lesser term, payment of a fine or restitution, or such other lawful punishment or condition of punishment as the Commission shall determine to be proper.

Only a Commission of seven members may sentence an Accused to death. A Commission may (subject to rights of third parties) order confiscation of any property of a convicted Accused, deprive that Accused of any stolen property, or order the delivery of such property to the United States for disposition.

H. Post-Trial Procedures

...

(2) Finality of Findings and Sentence

A Commission finding as to a charge and any sentence of a Commission becomes final when the President or, if designated by the President, the Secretary of Defense makes a final decision thereon pursuant to Section 4(c)(8) of the President's Military Order and in accordance with Section 6(H)(6) of this Order. An authenticated finding of Not Guilty as to a charge shall not be changed to a finding of Guilty. Any sentence made final by action of the President or the Secretary of Defense shall be carried out promptly. Adjudged confinement shall begin immediately following the trial.

...

(4) Review Panel

The Secretary of Defense shall designate a Review Panel consisting of three Military Officers, which may include civilians commissioned pursuant to reference (e). At least one member of each Review Panel shall have experience as a judge. The Review Panel shall review the record of trial and, in its discretion, any written submissions from the Prosecution and the Defense and shall deliberate in closed conference. The Review Panel shall disregard any variance from procedures specified in this Order or elsewhere that would not materially have affected the outcome of the trial before the Commission. Within thirty days after receipt of the record of trial, the Review Panel shall either

(a) forward the case to the Secretary of Defense with a recommendation as to disposition, or

(b) return the case to the Appointing Authority for further proceedings, provided that a majority of the Review Panel has formed a definite and frim conviction that a material error of law occurred.

(5) Review by the Secretary of Defense

The Secretary of Defense shall review the record of trial and the recommendation of the Review Panel and either return the case for further proceedings or, unless making the final decision pursuant to a Presidential designation under Section 4(c)(8) of the President's Military Order, forward it to the President with a recommendation as to disposition.

(6) Final Decision

After review by the Secretary of Defense, the record of trial and all recommendations will be forwarded to the President for review and final decision (unless the President has designated the Secretary of Defense to perform this function). If the President has so designated the Secretary of Defense, the Secretary may approve or disapprove findings or change a finding of Guilty to a finding of Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the sentence imposed or any portion thereof. If the Secretary of Defense is authorized to render the final decision, the review of the Secretary of Defense under Section 6(H)(5) shall constitute the final decision."

"(a) The commission's procedures, set forth in Commission Order No. 1, provide, among other things, that an accused and his civilian counsel may be excluded from, and precluded from ever learning what evidence was presented during, any part of the proceeding the official who appointed the commission or the presiding officer decides to 'close'. Grounds for closure include the protection of classified information, the physical safety of participants and witnesses, the protection of intelligence and law enforcement sources, methods, or activities, and "other national security interests." Appointed military defense counsel must be privy to these closed sessions, but may, at the presiding officer's discretion, be forbidden to reveal to the client what took place therein. Another striking feature is that the rules governing Hamdan's commission permit the admission of any evidence that, in the presiding officer's opinion, would have probative value to a reasonable person. Moreover, the accused and his civilian counsel may be denied access to classified and other 'protected information', so long as the presiding officer concludes that the evidence is 'probative' and that its admission without the accused's knowledge would not result in the denial of a full and fair trial."

"Under President Bush's November 13th Military Order on military commissions, any foreign national designated by the President as a suspected terrorist or as aiding terrorists could potentially be detained, tried, convicted and even executed without a public trial, without adequate access to counsel, without the presumption of innocence or even proof of guilt beyond reasonable doubt, and without the right to appeal.

The U.S. State Department has repeatedly criticized the use of military tribunals to try civilians and other similar limitations on due process around the world. Indeed, its annual Country Reports on Human Rights Practices evaluate each country on the extent to which it guarantees the right to a 'fair public trial' - which it defines to include many of the due process rights omitted by the President's Military Order. The Order may make future U.S. efforts to promote such standards appear hypocritical. Indeed, even if its most egregious failings are corrected in subsequent regulations, the text of the Order may become a model for governments seeking a legal cloak for political repression."

The material in the World Briefing read:

"The United Nations human rights commissioner, Mary Robinson, criticized the Bush administration plan to set up military tribunals for terrorist suspects, saying they skirt democratic guarantees. These safeguards, including right to a fair trial, must be upheld even in crises, she said, adding that it was not enough to say trust me as a government. She said that the Sept. 11 terrorist attacks were crimes against humanity meriting special measures but said that the plan for secret trials was so overly broad and vaguely worded that it threatened fundamental rights."

"More than 300 law professors from around the country are protesting President Bush's order to establish military tribunals for foreign terrorist suspects.

In a letter that originated at Yale Law School, the lawyers assert that such tribunals are 'legally deficient, unnecessary and unwise'.

The lawyers, who represent varying institutions and political philosophies, say the tribunals as outlined so far would violate the separation of powers, would not comport with constitutional standards of due process and would allow the president to violate binding treaties.

The tribunals, they say, assume that procedures used in civil courts or military courts-martial would be inadequate to handle such cases. And they say that using them would undercut the ability of the United States to protest when such tribunals are used against American citizens in other countries.

The letter was sent to Senator Patrick J. Leahy, the Vermont Democrat who is chairman of the Judiciary Committee and who questioned Attorney General John Ashcroft at length on Thursday about the tribunals.

Mr. Ashcroft defended them, saying they would be used only for war crimes. Referring to the Sept 11 terrorist attacks, Mr. Ashcroft said, 'When we come to those responsible for this, say who are in Afghanistan, are we supposed to read them the Miranda rights, hire a flamboyant defense lawyer, bring them back to the United States to create a new cable network of Osama TV?' ..."

"The operating guidelines for trials by executive military commission, issued by the US Secretary of Defence yesterday, have thrown into stark relief the fundamental defects of the Military Order signed by President Bush on 13 November 2001, Amnesty International said today.

'We have said from the start that the Military Order was too flawed to fix and should be revoked', Amnesty International said. 'That the Pentagon has paid lip service to due process in its commission guidelines cannot disguise the fact that any trial before these executive bodies would violate the USA's international obligations'.

Amnesty International is repeating its call for the Military Order to be rescinded, and for no person to be tried before the military commissions. The fundamental flaws include:

! The Military Order is discriminatory. US nationals will not be tried by military commission, even if accused of the same offence as a foreign national, but rather tried by ordinary civilian courts with a broad range of fair trial protections. Under the Order, selected foreign nationals will receive second-class justice, in violation of international law which prohibits discriminatory treatment, including on the basis of nationality.

! The commissions would allow a lower standard of evidence than is admissible in the ordinary courts, including hearsay evidence. The Pentagon guidelines do not expressly exclude statements extracted under torture or other coercive methods. These deficiencies are particularly troubling given the lack of due safeguards during interrogation and the fact that the commissions will have the power to hand down death sentences.

! In violation of international law, there will be no right of appeal to an independent and impartial court established by law. Instead, there would be a review by a three-member panel appointed by the Secretary of Defence.

! The military commissions would entirely lack independence from the executive. The President has given himself or the Secretary of Defence the power to name who will be tried by the commissions, to appoint or to remove the members of those commissions, to pick the panel that will review convictions and sentences, and to make the final decision in any case.

...

The procedures infringe the right to a fair trial in a number of other ways, including failing to guarantee that civilian defence counsel will be able to see all the evidence against their clients, permitting the use of secret evidence and anonymous witnesses, failing to guarantee that all relevant documents will be translated for the accused, and forcing the accused to accept US military lawyers as co-counsel against their wishes.

Moreover, Pentagon officials yesterday stated that even if acquitted by the military commissions, the defendants may remain in detention indefinitely. Amnesty International is concerned that the Military Order of 13 November allows for indefinite detention without trial. The USA is currently holding without charge or trial more than 500 people in Afghanistan and Guantánamo Bay.

They have been denied access to the courts or to legal counsel. This is despite the fact that interrogations at Camp X-Ray have been continuing for two months. ..."

F. Review of the CIA's activities involved in the HVD Programme in 2001-2009 by the US Senate

"The Senate Intelligence Committee this afternoon voted to declassify the 480-page executive summary as well as 20 findings and conclusions of the majority's five-year study of the CIA Detention and Interrogation Program, which involved more than 100 detainees.

The purpose of this review was to uncover the facts behind this secret program, and the results were shocking. The report exposes brutality that stands in stark contrast to our values as a nation. It chronicles a stain on our history that must never again be allowed to happen. ...

The report also points to major problems with CIA's management of this program and its interactions with the White House, other parts of the executive branch and Congress. This is also deeply troubling and shows why oversight of intelligence agencies in a democratic nation is so important. ...

The full 6,200 page full report has been updated and will be held for declassification at a later time."

"Beginning with the CIA's first detainee, Abu Zubaydah, and continuing with numerous others, the CIA applied its enhanced interrogation techniques with significant repetition for days or weeks at a time. Interrogation techniques such as slaps and 'wallings' (slamming detainees against a wall) were used in combination, frequently concurrent with sleep deprivation and nudity. Records do not support CIA representations that the CIA initially used an 'an open, nonthreatening approach', or that interrogations began with the 'least coercive technique possible' and escalated to more coercive techniques only as necessary."

"Even after the conditions of confinement improved with the construction of new detention facilities, detainees were held in total isolation except when being interrogated or debriefed by CIA personnel.

Throughout the program, multiple CIA detainees who were subjected to the CIA's enhanced interrogation techniques and extended isolation exhibited psychological and behavioral issues, including hallucinations, paranoia, insomnia, and attempts at self-harm and self-mutilation.

Multiple psychologists identified the lack of human contact experienced by detainees as a cause of psychiatric problems."

"The CIA blocked State Department leadership from access to information crucial to foreign policy decision-making and diplomatic activities. The CIA did not inform two secretaries of state of locations of CIA detention facilities, despite the significant foreign policy implications related to the hosting of clandestine CIA detention sites and the fact that the political leaders of host countries were generally informed of their existence. Moreover, CIA officers told U.S. ambassadors not to discuss the CIA program with State Department officials, preventing the ambassadors from seeking guidance on the policy implications of establishing CIA detention facilities in the countries in which they served.

In two countries, U.S. ambassadors were informed of plans to establish a CIA detention site in the countries where they were serving after the CIA had already entered into agreements with the countries to host the detention sites. In two other countries where negotiations on hosting new CIA detention facilities were taking place, the CIA told local government officials not to inform the U.S. ambassadors."

IV. THE PARTICULAR CIRCUMSTANCES OF THE CASE

A. The applicant's capture, transfer to the CIA's custody, his secret detention and transfers from mid-October 2002 to 6 June 2003, as established by the Court in Al Nashiri v. Poland and supplemented by the 2014 US Senate Committee Report

"401. The Court notes that the CIA official documents clearly confirm that by November 2002 the Agency had the applicant and Mr Abu Zubaydah, both referred to as 'High-Value Detainees', in its custody and that they were interrogated at a CIA black site with the use of the EITs - the applicant immediately after his arrival at that place on 15 November 2002 ... .

...

"In December 2002, when DETENTION SITE GREEN was closed, Al Nashiri and Abu Zubaydah were rendered to DETENTION SITE BLUE."

"417. Assessing all the above facts and evidence as a whole, the Court finds it established beyond reasonable doubt that:

(1) on 5 December 2002 the applicant, together with Mr Abu Zubaydah, arrived in Szymany on board the CIA rendition aircraft N63MU;

(2) from 5 December 2002 to 6 June 2003 the applicant was detained in the CIA detention facility in Poland identified as having the codename 'Quartz' and located in Stare Kiejkuty;

(3) during his detention in Poland under the HVD Programme he was interrogated by the CIA and subjected to EITs and also to unauthorised interrogation techniques as described in the 2004 CIA Report, 2009 DOJ Report and the 2007 ICRC Report;

B. The applicant's transfers and detention between his rendition from Poland on 6 June 2003 and his alleged rendition to Romania on 12 April 2004 as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

In particular, Mr J.G.S. testified as follows:

"... [I]n respect of Mr Al Nashiri, it is stated explicitly and unredacted in the Senate Report that from June 2003 Al Nashiri was moved to five different detention facilities before his ultimate transfer to Guantánamo Bay in September 2006. This provides us with a precise timeframe, June 2003 to September 2006, and it provides us with a precise number of transfers which we then have to correlate with his interrogation schedule and the available flight data to determine where he was held. It is on that basis that we have been able to arrive at the conclusion that he was transported from Poland first to Morocco, then onwards to Guantánamo Bay, then onwards to Romania, to one further site, and with a high degree of probability, Lithuania, before being transferred back to Afghanistan as no. 5, and finally to Guantánamo Bay. There are very limited possibilities as to where the CIA could take its detainees because it always maintained a very small range of sites, and because the planes are the same, they operate upon systematic methodologies, notably dummy flight planning, switching of aircraft and all the other tactical elements described. One can narrow down that probability to a certitude, with the right rigour of investigation, and it is that which we have applied to arrive at these conclusions, which have subsequently been validated in the official record."

"As was established in the earlier proceedings, Al Nashiri was taken from Poland to Morocco, to the facility near Rabat in June of 2003, arriving there on 6 June 2003. And after detention there for a period of only 3 months, he was then transferred to the CIA secret facility at Guantánamo Bay. The declassified Senate Committee Report provides extensive detail on the evolution of CIA operations in respect of Morocco and Guantánamo Bay, notably in this passage it refers specifically to Al Nashiri as having been transferred out of a country which is identifiable as Morocco, to the CIA detention facility at Guantánamo Bay, Cuba, after a period of five months beyond the original agreed timeframe. This passage resides within a section of the report which describes difficult and sometimes acrimonious relations between the CIA and its Moroccan counterparts, and it is evident that, in fact, the date, redacted in this passage, is September 2003, which is precisely the time at which our flight information demonstrates an aircraft arriving in Morocco and transporting detainees onwards to Guantánamo Bay."

"The starting point in assessing Al Nashiri's own chronology of secret detention in these proceedings should be Poland, because we have it confirmed, as a matter of judicial fact, that Al Nashiri was detained in Poland, having been transported there on the flight of N63MU from Bangkok to Szymany on 4 and 5 December 2002. So he found himself in Poland at the end of 2002, during which he was subjected to all the documented abuse, the enhanced interrogation techniques and the unauthorised techniques described in the earlier proceedings, into the calendar year 2003. In the earlier proceedings we presented a range of flights which brought detainees into Poland.

However, the first flight which took detainees out of Poland occurred on 5 and 6 June 2003. Based upon, now, the confirmations in the Senate Committee Report, we can see this outward flight from Poland as the starting point of Mr Nashiri's next chronology of detention. It is stated explicitly June 2003, from that point onwards, Mr Nashiri was detained in five further sites before ultimately being transferred to Guantánamo in September 2006. The flight on 5 June 2003 took Mr Nashiri, together with another CIA detainee, Ramzi bin al-Shibh, to Rabat, Morocco. Rabat, Morocco, at that time was a facility lent to the Agency, to CIA, by their Moroccan counterparts. It was a facility which resided within the Moroccan system, and it is described in explicit detail in the Senate Report. That facility was the same place to which some persons from Guantánamo would be later taken back, but I will explain why Mr Nashiri was not one of those, with reference to the same material. In 2003, according to the report, it was allowed to operate until September, at which point relations became acrimonious and certain conditions were placed upon it. The CIA collected its detainees who were housed there, which included Mr Al Nashiri, on 23 September 2003 in the rendition circuit I demonstrated. That is the date confirmed from the CIA's own reporting, and the flight confirmed through our investigations, the rendition circuit I demonstrated. So we are now taking Mr Nashiri from Poland to Morocco as number 1, Guantánamo as number 2."

"Consideration of a detention facility in Country [name blackened] began in [month blackened] 2003, when the CIA sought to transfer Ramzi bin al-Shibh from the custody of a foreign government to CIA custody [blackened] which had not yet informed the country' political leadership of the CIA's request to establish a clandestine detention facility in Country [blackened], surveyed potential sites for the facility, while the CIA set aside [USD] [number blackened] million for its construction.

In 2003, the CIA arranged for a 'temporary patch' involving placing two CIA detainees (Ramzi bin al-Shibh and Abd al-Rahim al-Nashiri) within an already existing Country [blackened] detention facility, until the CIA's own facility could be built.

...

By [day/month blackened] 2003, after an extension of five months beyond the originally agreed upon timeframe for concluding CIA detention activities in Country [blackened], both bin al-Shibh and al-Nashiri had been transferred out of Country [blackened]| to the CIA detention facility at Guantánamo Bay, Cuba."

"Having departed from Washington, this aircraft, ... N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul.

From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe. The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [ Al Nashiri v. Poland and Husayn (Abu Zubaydah ) v. Poland ] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. ...

From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay."

"One flight circuit however is of particular significance and this is the final part of our presentation in which we would like to discuss how the detention operations in Poland were brought to an end.

In September 2003 the CIA rendition and detention programme underwent another overhaul analogous to the one which had taken place in December 2002 when Mr Nashiri and Mr Zubaydah were transferred from Thailand to Poland. On this occasion, the CIA executed a rendition circuit which entailed visiting no fewer than five secret detention sites at which CIA detainees were held. These included, in sequence, Szymany in Poland, Bucharest in Romania, Rabat in Morocco and Guantánamo Bay, a secret CIA compartment of Guantánamo Bay, having initially commenced in Kabul, Afghanistan. On this particular flight route, it has been found that all of the detainees who remained in Poland at that date were transferred out of Poland and deposited into the successive detention facilities at the onward destinations: Bucharest, Rabat and Guantánamo. Among those persons was one of the applicants today, Mr Zubaydah, who was taken on that date from Poland to Guantánamo Bay. This particular flight circuit was again disguised by dummy flight planning although significantly not in respect of Poland. It was the sole official declaration of Szymany as a destination in the course of all the CIA's flights into Poland. The reason therefor being that no detainee was being dropped off in Szymany on the night of 22 September and the methodology of disguising flight planning pertained primarily to those renditions which dropped a detainee off at the destination. Since this visit to Szymany was comprised solely of a pick-up of the remaining detainees, the CIA declared Szymany as a destination openly and instead disguised its onward destinations of Bucharest and Rabat, hence demonstrating that the methodology of disguised flight planning continued for the second European site in Bucharest, Romania and indeed for other detention sites situated elsewhere in the world."

"Beginning in September 2003, the CIA held a number of detainees at CIA facilities on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba. In early January 2004, the CIA and the Department of Justice began discussing the possibility that a pending U.S. Supreme Court case Rasul v. Bush, might grant habeas corpus rights to the five CIA detainees then being held at a CIA detention facility at Guantánamo Bay. Shortly after these discussions, CIA officers approached the [REDACTED] in Country [REDACTED] to determine if it would again be willing to host these CIA detainees, who would remain in CIA custody within an already existing Country [REDACTED] facility. By January [day REDACTED] 2004, the [REDACTED] in Country [REDACTED] had agreed to this arrangement for a limited period of time.

Meanwhile, CIA General Counsel Scott Muller asked the Department of Justice, the National Security Council, and the White House Counsel for advice on whether the five CIA detainees being held at Guantánamo Bay should remain in Guantánamo Bay or be moved pending the Supreme Court's decision. After consultation with the U.S. solicitor general in February 2004, the Department of Justice recommended that the CIA move four detainees out of a CIA detention facility at Guantánamo Bay pending the Supreme Court's resolution of the case. The Department of Justice concluded that a fifth detainee, Ibn Shaykh al-Libi, did not need to be transferred because he had originally been detained under military authority and had been declared to the ICRC. Nonetheless, by April [redacted two-digit number] 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities."

C. The applicant's alleged secret detention at a CIA "black site" in Romania from 12 April 2004 to 6 October or 5 November 2005 as described by the applicant, reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

"Mr Al Nashiri was captured in Dubai in the United Arab Emirates in October 2002. By November 2002, he had been secretly transferred to the custody of the CIA. He was held in various secret locations before being detained in Romania. US agents first took him to a secret CIA prison in Afghanistan known as the 'Salt Pit'. In Afghanistan, interrogators subjected him to 'prolonged stress standing positions', during which his wrists were 'shackled to a bar or hook in the ceiling above the head' for 'at least two days'. US agents then took him to another secret CIA prison in Thailand, where he remained until 5 December 2002. According to a United Nations Report, on 5 December 2002, the CIA transported Mr Al Nashiri on a chartered flight with tail number N63MU from Bangkok to a secret CIA detention site in Poland. On or about 6 June 2003, Polish authorities assisted the CIA in secretly transferring Mr. al Nashiri from Poland. ...

After his transfer out of Poland, between 6 June 2003 and 6 September 2006 Mr Al Nashiri was held in various secret detention facilities abroad, including a CIA prison in Bucharest, Romania. He was transferred to Guantánamo Bay by 6 September 2006."

"...[T]he transfer date of Al Nashiri to Romania was 12 April 2004. Our investigations have provided evidence that this transfer took place directly from Guantánamo Bay to the 'black site' in Bucharest, Romania. Again, the [US] Senate Committee Report, albeit using code names, coloured code names for the sites in question, describes explicitly where particular detainees were at particular times, and in this passage highlighted, in describing the closure of the Guantánamo Bay facility in the face of probable exposure due to a Supreme Court assessment of the legality of their detention, it states that ' by a date in April 2004, all five CIA detainees were transferred from Guantánamo Bay to other CIA detention facilities '. The use of 'facilities' here in the plural is very important, because the principal destination for those held by the CIA at Guantánamo was in fact back to the facility in Morocco from whence they had come. However, as the Senate inquiry made clear, not all of those held at Guantánamo went back to Morocco, and indeed the date cited here, 12 April 2004, coincides with the flight of N85VM aircraft from Guantánamo to Băneasa, Bucharest, in Romania. This is the flight circuit, again it is backed up by a tranche of documentary evidence which I am prepared to provide to the Court, and in particular this graphic demonstrates that there were two distinct transfers out of Guantánamo. The first on 27 March 2004 carried detainees from Guantánamo back to Rabat, Morocco. The second of these, which is of our principal interest, transported one or more detainees, among them Al Nashiri, via a stopover in Tenerife onto Romania.

I have put together a graphic to illustrate that, once again, the CIA had recourse to its systematic practice of disguised flight planning in respect of this flight. We reached a point in our investigations, Madam President, where evidence of dummy flight planning in fact became a tell-tale sign of rendition or detainee transfer activity on such flights. So it is significant, as I will demonstrate, that this was not a simple circuit. The aircraft embarked from Washington and flew to Guantánamo Bay, whereupon the blue line demonstrates the first part of the detainee transfer from Guantánamo to Tenerife, a flight planned and executed. From Tenerife, however, the aviation services provider, in this case Air Rutter International from Houston, Texas, filed a dummy flight plan to the alternative Romanian destination of Constanţa, on the Black Sea Coast. The aircraft, however, flew and landed at Bucharest Băneasa Airport, as documentation from the Romanian authorities demonstrates. It is this flight, depicted here with the blue line, that carried Al Nashiri to detention in Bucharest. From Bucharest, the aircraft flew back to Rabat, Morocco, and it is apparent premise that one or more detainees from the Romanian site, detained prior to April 2004, was at that point taken from Bucharest back to detention in Morocco, after which the aircraft returned to its base at Washington D.C.

We have been able to uncover this and other flights planned through the network of private contractors, thanks to a large amount of documentation filed in court proceedings in civil courts in New York State, whereupon several US aviation service providers, contracted to the CIA, ended up in a financial dispute. The case in question, Sportsflight Inc. against [ sic ] Richmor Aviation, in fact concerns the CIA's chief aviation contractor, Computer Sciences Corporation, formerly DynCorp, its use of a prime aviation contractor known as Sportsflight Air, previously Capital Aviation, which in turn subcontracted its government mandates to a private company called Richmor Aviation, who were the owners and operators of the aircraft N85VM.

I appreciate that this web of corporate relations is quite difficult to understand on its face, but over several years, myself and other investigators have carefully unpicked these relationships to provide the direct link between the tasking of the United States Government on government contracts through the CIA's rendition group air branch, all the way down to the pilots, crew members and operators of the aircraft in question. It is unambiguously and categorically the case that these are rendition aircraft, operated for the sole purpose of transferring detainees between 'black sites' in the CIA's RDI programme. The flight of N85VM, on the dates in question, belongs in that category."

"The Guantánamo site operated only for a finite period. As I mentioned, it was due to the judicial scrutiny of the Supreme Court with a case pending in Rasul v. Bush , which was likely to expose CIA detainees to the same reporting obligations, but also the same rights, that detainees in other forms of federal custody would enjoy, and so the CIA deliberately took action to remove its detainees from such scrutiny in advance of the Supreme Court ruling. The Senate Committee Report describes this process, based upon cables and other classified material, and states that by April 2004, the date I assert, 12 April 2004, all of those detainees who were held in Guantánamo were moved out.

There were two flights, as I demonstrated, which formed part of this removal process, the first on 27 March 2004, the second on 12 April 2004. But the first of those only went to Rabat, Morocco, and if you recall, the Committee described, based upon its assessment of interrogation schedules, that Mr Nashiri had been to five different sites in that 3-year timeframe, and in order for him to be in five different sites, he, at that moment, could not have gone back to Morocco, because there are not sufficient documented instances of rendition which link the territories in question, Guantánamo, Rabat and Bucharest, in the timeframe in which the report confirms Mr Nashiri's tour of the sites.

The 12th April 2004 site was the sole outward flight linking Guantánamo to Romania. From the report, from the cables regarding Mr Nashiri's treatment and physical and psychological state, we know that he found himself in Romania in the 3rd quarter and 4th quarter of 2004, and in July 2005, there were specific notes made upon his state and status in those date frames. In order for him to have been in Romania at Detention Site Black or 'Britelite' by that time, he had to be brought to Romania on flight N85VM on 12 April 2004.

It is a process of elimination, but it is also a process of correlation, which very clearly links to documents filed by contractors, corresponds with the international aviation data that we have analysed, corresponds with the tactics of dummy flight planning and disguise, and ultimately is validated in the public record by the Senate Report."

"I am aware of two possible flights that could have taken the applicant Al Nashiri into Romania, that [a flight with the tail number N85VM], is one of them. There is a potential other one that occurred in February 2005. We know for a fact that he was in Romania after February 2005, we know from cables referenced in the Senate Report that he was in Romania in June 2005. There are indications that he was held in Romania before that, in late 2004, which leads me, of the two possibilities, that leads me to prefer the April 2004 flight as being the more likely of the two. In terms of my own research, I would say that there is a small ambiguity on that point, I am not prepared to say that the data I have at my fingertips conclusively demonstrates that he was taken on the April flight in 2004 rather than the February one in 2005. I think the balance of probability does lie in favour of that. However, whichever of the two it is, there is no doubt that he was in Romania by the summer of 2005."

"From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way and another time they tortured me in a different way.

By hanging, head was up and legs were pointing downwards. I was hung for almost a month. You doing your things basically and you were hung upside down and drowning and hitting at the wall. There are many scars on my head if I shave my head. If I shave my hair the scars will become obvious.

What else do I want to say? I was without clothes. I was sleeping on the floor for about a month. Many things happened. There were doing so many things. What else did they did?

There a box half meter by half meter. It was two meters in height They used to put me inside the box. I was standing in that box for about a week and I couldn't do anything. My feet were swollen. My nails were about fall off because, I was standing on my feet for long time. They do so many things. So so many things. What else did they did?

That thing lasted for about six month[s]. After that another method of torture began. They use to put something in the food that use to make the body tired. Before I was arrested I used to be able to run about ten kilometers. Now, I cannot walk for more than ten minutes. My nerves are swollen in my body. Swollen too. They used to ask me questions and the investigator after that used to laugh. And, I used to answer the answer that I knew. And, if I didn't reply what I heard, he used to put something in my food. And, after I ate it my body felt like, um, strange. After that he used to come back and talk to me. He told you he put anything in the food. He used to deny that but the camera was behind him. And; I would stand in front of the camera and he used to tell you that because camera was on. He could not deny anything. You have to acknowledge to what we are saying. And, I used to say acknowledge what? They used to ask even political questions. One is the solution to the American problem in Iraq. I'm not the American Foreign Minister to answer these questions. So they used to go and put some stuff in my food. These things happen for more than two years. That thing did not stop until here. So many things happened. I don't in summary, that's basically what happened.

Then, the President of the Combatant Status Review Tribunal says:

Alright. Let me ask. So then since the time of capture 2002 until you came to Guantánamo you experienced these types of events?

The applicant responds:

Yes."

"I find myself somewhat more limited in my ability to describe specific forms of treatment or interrogation techniques to which Mr Nashiri was subjected in Romania than was the case in respect of Poland. And that is because of the natural evolution of the detention cycles to which CIA detainees were subjected. In pursuit of what was described as 'live actionable intelligence', the CIA developed its most stringent, harsh interrogation plans for the earliest days and weeks of a detainee's period in its detention system. Usually, within one to three days of being apprehended, the chief of base at the 'black site' in question would appeal to CIA headquarters for authorisation to practise EITs, so called 'enhanced interrogation techniques'. This was the case in respect of Abu Zubaydah, this was the case in respect of Al Nashiri, this was the case in respect of Khalid Sheikh Mohammed, this we know because of the Inspector General's reports. As soon as a detainee was in custody, in Abu Zubaydah's case, was fit enough to undergo interrogation, that plan would commence. We know that Al Nashiri underwent twelve days of harsh interrogation in Thailand including the waterboard, and we know that upon transfer to Poland, because he was assessed as having withheld information or not been compliant, he was then subjected to an intensive period of harsh interrogation during with multiple, unauthorised techniques were used. Those were documented in the earlier proceedings [ Al Nashiri v. Poland ]. But there arrives a juncture in a CIA detainee's detention at which his intelligence value is assessed as lower, at which no further approval or authorisation is sought or granted to practise these enhanced interrogation techniques, and in Al Nashiri's case we can only say that that point arrived sometime in 2003. Thereafter, it is, in my assessment and according to the documentary record, unlikely that the CIA practised further unauthorised techniques or indeed concerted programmes of enhanced interrogation on Mr Nashiri.

However, that is not to say that he was not subjected to abuse or indeed that the conditions of his confinement did not amount to violations of the European Convention. In respect of those two latter points, I would aver quite clearly that the treatment did amount to violations of the Convention, purely by virtue of the conditions in which he was held and because of the regular interventions made by persons at the 'black site' to gratuitously abuse, punitively or otherwise, certain detainees in their custody. I can give you analogous examples of how detainees were treated in Romania. Hassan Ghul, for example: there is a lengthy description of his having endured 59 hours of sleep deprivation, having been shaved and barbered, stripped naked, placed in standing positions with his hands above his head. There are descriptions of how, notwithstanding medical and psychological problems diagnosed by professionals at the scene, he was subjected to further interrogation to the point of enduring hallucinations. I could also cite the example of Janat Gul, a detainee for whom the CIA sought authorisation to use the waterboard in Romania, an unprecedented move, and who was subsequently subjected to an intensive period of enhanced interrogation in the same site at which Al Nashiri was held. I could also cite the case of Abu Faraj al-Libi who was captured in 2005 and even at that point, three years and more into the programme, was subjected to the same litany of abusive techniques in interrogating him as Al Nashiri and others had been subjected to in 2002 and 2003. And I could also cite, too, some memoranda produced by the CIA General Counsel's office in the material period in which Al Nashiri was held in Romania, which described conditions of confinement, sensory deprivation as a matter of routine, denial of religious rights, physical and psychological oppression, sleep deprivation as a matter of course, notwithstanding whether a detainee is subject at that time, or not, to EITs.

So whilst I cannot give the same level of specificity as I was able to present in respect of Poland, I can aver with a high level of certainty that he endured ill-treatment whilst held in Romania because, in my view, every one of those detainees brought to Romania, held incommunicado, indefinitely, with no idea of their whereabouts or their fate, subjected to frequent renditions, shackled, drugged, often beaten in the process, every one of those persons would have a legitimate claim under our European Convention on Human Rights for violation of their personal integrity."

"The question of precise types of treatment is, I would not say it is my specific expertise. It is clear from the Senate Report and other sources that treatment in Romania included very extreme sleep deprivation, which apparently led some of those who suffered it to have very severe mental and physical problems, and it is clear also that the applicant, Mr Nashiri, in particular when he was in Romania, was experiencing serious, let's say, psychological problems as a result of the treatment that he had received. But my, and I should say also it is clear that around that time, between 2003 and 2005, it is firmly on the record that there were a range of treatments being applied to these people, that the enhanced interrogation techniques were being applied, I think this has all been quite well documented, but it is not really my topic of expertise, I would not say."

"In the final years of al-Nashiri's detention, most of the intelligence requirements for al-Nashiri involved showing al-Nashiri photographs. In June 2005, the DETENTION SITE BLACK chief of Base suspended even these debriefings because it was 'the very, very rare moment' that al-Nashiri would recognize a photograph, and because the debriefings often were the 'catalyst' for his outbursts."

"In terms of [the Black Site in Romania's] closure, it is stated in the [2014 US Senate Committee Report] that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, ... dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period. Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the report.

It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in The Washington Post , which went into intimate detail of the CIA's operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black - and let me be clear - that is the authorities of Romania, must have known of the nature of operations occurring on their territory.

The question has often been posed to us, Honourable Judges, if there were detainees in Romania, how did they leave? There appeared to be no obvious direct flights out of Romania in the critical period, October, November 2005, to any other detention site we were aware of, and this was often put forward by representatives of the Romanian authorities as a reason for decrying, for rejecting, for refuting the content of our reporting [i.e. at the time of the publication of the 2006 and the 2007 Marty Reports].

We have, however, now ascertained how detainees were removed from Romania, and this occurred in two tranches in the months of October 2005 and, as stated, November 2005. I have chosen to illustrate the first of these transfers, which occurred between 5 and 6 of October 2005, because it provides a further segue into detention operations on the territory of another Council of Europe Member State, in this case Lithuania.

The CIA used two tactics of deceit in order to provide these flights with the maximum degree of cover, in order that they could not and would not be tracked, traced or held to account. The first of those was its conventional dummy flight planning, but the second of those was a novel tactic involving switching of aircraft. This graphic will demonstrate how this was deployed on 5 and 6 October 2005, involving two aircraft, namely N308AB and N787WH. The first of those aircraft is depicted by red lines, the second by blue, on the graphic, the other symbols follow the earlier pattern of drop-off, transfer and stopover points. The two planes arrived in Europe, the first [N308AB] from provenance of Teterboro, New Jersey, the second [N787WH] from provenance of Keflavik in Iceland on 5 October 2005. While the first flew to Bratislava, in Slovakia, the second flew directly to Tirana, Albania, which would become the staging point for these operations. The first dummy flight plan, filed by the CIA's aviation services provider, stated a path for N308AB from Bratislava to Constanţa airport, a route which it did not, nor did it intend, to fly. The aircraft instead flew directly to Bucharest Băneasa airport, the servicing airport for the 'black site' in Romania, whereupon it would collect detainees. Those detainees referred to in the Senate Committee Report who were cleared from Romania in these critical months were then taken from Bucharest to Tirana, to the staging point where the other CIA aircraft had been waiting for a day in advance. In this staging point, in an unprecedented manoeuvre, according to our investigations, detainees were transferred from the first aircraft onto the second, together with members of the CIA rendition crew. The second aircraft, N787WH, which is also a Boeing 737 business jet, used conventionally for wholesale transfers filed its own dummy flight plan, citing a destination of Tallinn, Estonia, a route which it did not, nor did it intend, to fly. Instead, this aircraft N787WH flew on 6 October 2005 carrying detainees from Romania to Vilnius, Lithuania, thereby providing a link between two detention sites on European territory. The aircraft then departed in their own respective directions, the rendition aircraft N787WH via Oslo, towards the north, and the first aircraft, N308AB from Tirana, via Shannon, back towards New Jersey. Therein the CIA had innovated yet another means, another layer of cover to obstruct proper accounting for the illegal transfer of its detainees, but due to a process which Senator Marty referred to as ' la dynamique de la vérité' , we have been able, methodically and carefully, to unpick these layers of secrecy and present to this Court what we believe is a truthful and accurate accounting of operations in respect of these 'black sites'."

"There are two known and documented junctures at which CIA detainees at the 'black site' in Romania were removed from Romania. The first of those, I illustrated with my last set of graphics, on 5 and 6 October, which took detainees from Bucharest, Romania via switching of aircraft in Albania, to Vilnius, Lithuania. The second took place on 5 November 2005, within three to four days of the Washington Post' s report, and at the insistence of the Romanian authorities, which took detainees via Amman, Jordan to Kabul, Afghanistan. We know that at 1 January 2006 there were only two CIA detention sites in active operation, that much is stated in the Senate Report. Those were the sites known as 'Violet' and 'Orange': the former, 'Violet', in Lithuania, the latter, 'Orange', in Afghanistan. And so Al Nashiri, in all likelihood and without any other information to refer to, was taken to one of those two destinations on one of those two flights. Based upon my earlier rationale about the five different facilities in which he was held, I would aver that it is more likely than not that he was taken from Romania to Lithuania on 5 and 6 October 2005 and was held there until onwards transfer in March 2006 to Afghanistan and subsequently on to Guantánamo Bay. That would, logically, complete the number and nature of detention experiences chronicled in the Senate Committee Report and other documents released by the United States."

" ... [T]here are two possibilities, and I believe only two possibilities: one is that [the applicant] left [Romania] in October 2005, on 5 October 2005, and the other is that he left on the 5 November 2005. If the flight on 5 October 2005 was a dual flight, it was a kind of a two-plane switch that took prisoners from Romania into Lithuania, and the flight the following month in November 2005 was again a two-plane switch that took prisoners from Romania into Afghanistan. I think there is an indication in the data that we have, based on the Senate Report, that Mr Nashiri was taken to Lithuania, which should mean he was taken in October rather than November, but it is, I would not say it is a hundred per cent clear, unambiguous. I would say it is an indication that seems probable. There is no doubt that the flight in November signalled the end of the Romanian site, I mean it came, I do not know, 72 hours after the existence of the site had been revealed in The Washington Post , the government had demanded the site shut down, the Senate Report is very clear that at that point everyone who was remaining in Romania was shipped out to Afghanistan, so at that point, after the 5 November 2005, the CIA 'black site' programme was operating only in Lithuania and in Afghanistan."

"After publication of the Washington Post article, [REDACTED] Country [REDACTED] demanded closure of DETENTION SITE BLACK within [two-digit number REDACTED] hours. The CIA transferred the [number REDACTED] remaining CIA detainees out of the facility shortly thereafter."

D. The applicant's further transfers during CIA custody (until 5 September 2006) as reconstructed on the basis of the 2014 US Senate Committee Report and other documents and as corroborated by experts heard by the Court

E. The applicant's detention in Guantánamo Bay and his trial before the military commission from 6 September 2006 to present

F. Psychological effects of the HVD Programme on the applicant

"... Abd al-Rahim al-Nashiri's unpredictable and disruptive behavior in detention made him one of the most difficult detainees for the CIA to manage. Al-Nashiri engaged in repeated belligerent acts, including throwing his food tray, attempting to assault detention site personnel, and trying to damage items in his cell. Over a period of years, al-Nashiri accused the CIA staff of drugging or poisoning his food and complained of bodily pain and insomnia. As noted, at one point, al- Nashiri launched a short-lived hunger strike, and the CIA responded by force feeding him rectally.

An October 2004 psychological assessment of al-Nashiri was used by the CIA to advance its discussions with National Security Council officials on establishing an 'endgame' for the program.

In July 2005, CIA Headquarters expressed concern regarding al-Nashiri's 'continued state of depression and uncooperative attitude'. Days later a CIA psychologist assessed that al-Nashiri was on the 'verge of a breakdown'."

G. Identification of locations of the colour code-named CIA detention sites in the 2014 US Senate Committee Report by experts

H. "Detention Site Black" in the 2014 US Senate Committee Report

"[REDACTED] The CIA entered into an agreement with the [REDACTED] in Country [REDACTED] to host a CIA detention facility in [month REDACTED] 2002.

In [month REDACTED] 2003 CIA Headquarters invited the CIA Station in Country [REDACTED] to identify ways to support the [REDACTED] in Country [REDACTED] to 'demonstrate to [REDACTED] and the highest levels of the [Country [REDACTED] government that we deeply appreciate their cooperation and support' for the detention program. The Station responded with an $ [amount REDACTED] million 'wish list' [REDACTED]; CIA Headquarters provided the Station with $ [amount REDACTED] million more than was requested for the purposes of the [REDACTED] subsidy. CIA detainees were transferred to DETENTION SITE BLACK in Country [REDACTED] in the fall of 2003.

In August 2003, the U.S. ambassador in Country [REDACTED] sought to contact State Department officials to ensure that the State Department was aware of the CIA detention facility and its 'potential impact on our policy vis-a-vis the Country [REDACTED] government'. The U.S. ambassador was told by the CIA Station that this was not possible, and that no one at the State Department, including the secretary of state, was informed about the CIA detention facility in Country [REDACTED].

...

Nearly a year later, in May 2004, revelations about U.S. detainee abuses at the U.S. military prison in Abu Ghraib, Iraq, prompted the same U.S. ambassador in Country [REDACTED] to seek information on CIA detention standards and interrogation methods. In the fall of 2004, when [REDACTED] U.S. ambassador to Country [REDACTED] sought documents authorizing the program, the CIA again sought the intervention of Deputy Secretary Armitage, who once again made 'strong remarks' to the CIA about how he and the secretary of state were 'cut out of the NSC [National Security Council] clearance/coordination process' with regard to the CIA program. ...

While it is unclear how the ambassador's concerns were resolved, he later joined the chief of Station in making a presentation to Country [REDACTED]'s [REDACTED] on the CIA's Detention and Interrogation Program. The presentation talking points did not describe the CIA's enhanced interrogation techniques, but represented that '[w]ithout the full range of these interrogation measures, we would not have succeeded in overcoming the resistance of [Khalid Shaykh Muhammad] and other equally resistant HVDs' The talking points included many of the same inaccurate representations made to U.S. policymakers and others, attributing to CIA detainees critical information on the 'Karachi Plot' the 'Heathrow Plot'. the 'Second Wave Plot', and the 'Guraba Cell'; as well as intelligence related to Issa al-Hindi, Abu Talha al-Pakistani, Hambali, Jose Padilla, Binyam Mohammed, Sajid Badat, and Jaffar al-Tayyar. ..."

"In the fall of 2004, CIA officers began considering 'end games' or the final disposition of detainees in CIA custody.

...

[REDACTED] In 2004, CIA detainees were being held in three countries: at

DETENTION SITE BLACK in Country [REDACTED], at the [REDACTED] facility in Country [REDACTED], as well as at detention facilities in Country [REDACTED]. DETENTION SITE VIOLET in Country [REDACTED] opened in early 2005.

On April 15, 2005, the chief of Base at DETENTION SITE BLACK in Country [REDACTED] sent the management of RDG an email expressing his concerns about the detention site and the program in general. He commented that 'we have seen clear indications that various Headquarters elements are experiencing mission fatigue vis-a-vis their interaction with the program, resulting in a 'decline in the overall quality and level of experience of deployed personnel', and a decline in 'level and quality of requirements'. He wrote that because of the length of time most of the CIA detainees had been in detention, '[the] detainees have been all but drained of actionable intelligence', and their remaining value was in providing 'information that can be incorporated into strategic, analytical think pieces that deal with motivation, structure and goals'.

The chief of Base observed that, during the course of the year, the detention site transitioned from an intelligence production facility to a long-term detention facility, which raised 'a host of new challenges'. These challenges included the need to address the 'natural and progressive effects of long-term solitary confinement on detainees' and ongoing behavioral problems."

I. Parliamentary inquiry in Romania

"According to Article 1 of the Decree of Romania's Senate no. 29 of 21 December 2005, the Inquiry Committee was charged with investigating statements regarding the existence of some CIA detention facilities on the territory of Romania or of some flights of some planes leased by CIA, that would have allegedly transported persons accused of having performed terrorist acts".

"Regarding flight N313P of 25 January 2004, the Committee established that that flight landed on the Airport Bucharest-Băneasa for refuelling and ground services. No passenger embarked or disembarked the plane. There is all evidence that shows beyond this fact, but also the purpose of the stopover. ...

Mr Dick Marty states that the declaration of the Inquiry Committee contradicts the information provided by the Romanian Civil Aeronautical Authority, according to which, on 25 January 2004, its destination airport was Timişoara, not Bucharest - Băneasa. Later, the plane took off from Timisoara, and Mr Marty declared that he verified this fact. ...

We would like to mention that the initial information provided by the Romanian Civil Aeronautical Authority (RCAA), regarding the landing on the International Аirport Timisoara of the flight N313P of 25 January 2004, is due to the fact that RCAA had access only to the flight plan sent by the operator of the aircraft. The flight plan was modified by the operator in the air, requesting the stop on the International Airport Bucharest-Băneasa.

At that date, according to the Romanian legislation, the operators who performed private flights in the national airspace were not under any obligation to request from request from RCAA any overflight authorisation, since it was sufficient to submit the flight plan to the traffic body. ...

For N313P of 22-23 September 2003 (classified appendix no. 4):

- copy of the extract of the navigation chart ROMATSA associated with the Airport Băneasa, in which the real route of the flight is indicated;

- copy of the invoices no. 665 and 666 of 23 September 2003, concerning the flight N313P, issued by the handling agent of the Romanian Airport Services.

Flight N478GS of 6 December 2004, which had an accident while landing at the Airport Bucharest-Băneasa, is suspected of being involved in a circuit that would have transported prisoners, due to the fact that it was omitted from the list sent to Mr Dick Marty in April 2006.

The event had the following development: On 6 December 2004, at 1:29 PM, the aircraft of the company CENTURION AVIATION, type Gulfstream 4, which was performing a charter flight on the route Bagram/Afganistan-Bucharest/Băneasa, landed on the runway of the Аirport Băneasa, passing the threshold of the runway 07, with a ground speed of approximately 287 km/h. While rolling, the aircraft exceeded the available speed for landing ... and the delayed threshold of the runway, in an area of the runway where the airport was carrying on maintenance works ... .The aircraft rolled with the main left jamb on an unpaved portion with a depth of approximately 15-20 cm and stopped on the edge of the runway. The crew reported massive leaks of fuel from the left wing. The aircraft experienced damages on the left jamb of the main landing train and on the fuel tank in the left plan(classified appendix no. 5). ...

Flight N379P of 25 October 2003 raises questions for Mr Dick Marty, thinking that the Romanian Civil Aeronautical Authority indicates the route Prague-Constanţa -Băneasa-Amman. In reality, the flight took place on the route Prague-Bucharest Băneasa-Amman, according to invoice no. 3.314 of 25 October 2003, issued by ROMATSA (classified appendix no. 6).

Flights N85VM of 26 January 2004 and 12 April 2004 did not operate in the Airport Mihail Kogălniceanu, but in Airport Bucharest-�Băneasa (classified appendices no. 7 and 8); flights N227SV of 1 October, 2004 and N2189M of 13-14 June 2003 operated on the Аirport Mihail Kogălniceanu (classified appendices no. 9 and 10).

The appendix to Mr. Dick Marty's letter of March 31, 2006 requests details regarding 43 flights. The Inquiry Committee presents them in classified appendix no. 11."

"... the Inquiry Committee was assigned to investigate the statements regarding the existence of CIA detention facilities or of some flights of planes leased by CIA on the territory of Romania.

Consequently, since its mandate was strictly limited to the aforementioned issue, the Inquiry Committee did not request data from appropriate institutions, did not perform any investigation, and does not hold any kind of information regarding the purpose of the flights with the indication mentioned in chapter 5, point 3. ..."

J. Criminal investigation in Romania

V. RELEVANT DOMESTIC LAW

A. Criminal Code

"Romanian criminal law shall apply to offences committed on the territory of Romania"

B. Code of Criminal Procedure

"A criminal investigation authority [shall institute an investigation] if it has been informed of commission of an offence by a criminal complaint or notification of commission of an offence, or it shall [take action] of its own motion, when it has discovered by other means that an offence has been committed.

Where, according to the law, a criminal investigation can only be opened following a prior complaint, notification or authorisation of an authority provided for by law, such investigation shall not be instituted in their absence. ..."

"A criminal investigation authority shall take action of its own motion if it learns ( afla ) about commission of a criminal offence from any source other than those referred to in Articles 289-291 [in particular, criminal complaint and notification of the commission of an offence] and shall draw up a report in this regard."

VI. RELEVANT INTERNATIONAL LAW

A. Vienna Convention on the Law of Treaties

Article 26 "Pacta sunt servanda "

"Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

Article 27 Internal law and observance of treaties

"A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty ..."

B. International Covenant on Civil and Political Rights

"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation."

"1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."

C. The UN Torture Convention

"any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

"1. No State Party shall expel, return ('refouler' ) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

D. UN Geneva Conventions

"Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

..."

"The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

"Art 13. Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited."

"The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary."

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

"Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. ..."

E. International Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts

Article l Responsibility of a State for its internationally wrongful acts

"Every internationally wrongful act of a State entails the international responsibility of that State."

Article 2 Elements of an internationally wrongful act of a State

"There is an internationally wrongful act of a State when conduct consisting of an action or omission:

a. Is attributable to the State under international law; and

b. Constitutes a breach of an international obligation of the State."

Article 7 Excess of authority or contravention of instructions

"The conduct of an organ of a State or of a person or entity empowered to exercise elements of the governmental authority shall be considered an act of the State under international law if the organ, person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

..."

Article 14 Extension in time of the breach of an international obligation

"1. The breach of an international obligation by an act of a State not having a continuing character occurs at the moment when the act is performed, even if its effects continue.

Article 15 Breach consisting of a composite act

"1. The breach of an international obligation by a State through a series of actions or omissions defined in aggregate as wrongful occurs when the action or omission occurs which, taken with the other actions or omissions, is sufficient to constitute the wrongful act.

Article 16 Aid or assistance in the commission of an internationally wrongful act

"A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

( a ) that State does so with knowledge of the circumstances of the internationally wrongful act; and

( b ) the act would be internationally wrongful if committed by that State."

F. UN General Assembly Resolution 60/147

"24. ... victims and their representatives should be entitled to seek and obtain information on the causes leading to their victimization and on the causes and conditions pertaining to the gross violations of international human rights law and serious violations of international humanitarian law and to learn the truth in regard to these violations".

VII. SELECTED PUBLIC SOURCES CONCERNING GENERAL KNOWLEDGE OF THE HVD PROGRAMME IN 2002-2005 AND HIGHLIGHTING CONCERNS AS TO HUMAN RIGHTS VIOLATIONS ALLEGEDLY OCCURRING IN US-RUN DETENTION FACILITIES IN THE AFTERMATH OF 11 SEPTEMBER 2001

A. United Nations

"All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949. The legal status of the detainees and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention. All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention."

B. Parliamentary Assembly of the Council of Europe Resolution no. 1340 (2003) on rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay, 26 June 2003

"1. The Parliamentary Assembly:

1.1. notes that some time after the cessation of international armed conflict in Afghanistan, more than 600 combatants and non-combatants, including citizens from member states of the Council of Europe, may still be held in United States' military custody - some in the Afghan conflict area, others having been transported to the American facility in Guantánamo Bay (Cuba) and elsewhere, and that more individuals have been arrested in other jurisdictions and taken to these facilities;

...

9.1. bring conditions of detention into conformity with internationally recognised legal standards, for instance by giving access to the International Committee of the Red Cross (ICRC) and by following its recommendations;

9.2. recognise that under Article 4 of the Third Geneva Convention members of the armed forces of a party to an international conflict, as well as members of militias or volunteer corps forming part of such armed forces, are entitled to be granted prisoner of war status;

9.3. allow the status of individual detainees to be determined on a case-by-case basis, by a competent tribunal operating through due legal procedures, as envisaged under Article 5 of the Third Geneva Convention, and to release non-combatants who are not charged with crimes immediately.

...

C. International non-governmental organisations

"... the fight against terrorism launched by the United States after September 11 did not include a vigorous affirmation of those freedoms. Instead, the country has witnessed a persistent, deliberate, and unwarranted erosion of basic rights ... Most of those directly affected have been non-U.S. citizens ... the Department of Justice has subjected them to arbitrary detention, violated due process in legal proceedings against them, and run roughshod over the presumption of innocence."

"The Convention against Torture, which the United States has ratified, specifically prohibits torture and mistreatment, as well as sending detainees to countries where such practices are likely to occur."

"Many 'special interest' detainees have been held in solitary confinement or housed with convicted prisoners, with restrictions on communications with family, friends and lawyers, and have had inadequate access to facilities for exercise and for religious observance, including facilities to comply with dietary requirements. Some told human rights groups they were denied medical treatment and beaten by guards and inmates."

"A number of suspected members of al-Qaeda reported to have been taken into US custody continued to be held in undisclosed locations. The US government failed to provide clarification on the whereabouts and legal status of those detained, or to provide them with their rights under international law, including the right to inform their families of their place of detention and the right of access to outside representatives. An unknown number of detainees originally in US custody were allegedly transferred to third countries, a situation which raised concern that the suspects might face torture during interrogation."

"Detainees have been held incommunicado in US bases in Afghanistan. Allegations of ill-treatment have emerged. Others have been held incommunicado in US custody in undisclosed locations elsewhere in the world, and the US has also instigated or involved itself in 'irregular renditions', US parlance for informal transfers of detainees between the USA and other countries which bypass extradition or other human rights protections."

"Amnesty International is concerned that the detention of suspects in undisclosed locations without access to legal representation or to family members and the 'rendering' of suspects between countries without any formal human rights protections is in violation of the right to a fair trial, places them at risk of ill-treatment and undermines the rule of law."

"Beyond Guantánamo, the ICRC is increasingly concerned about the fate of an unknown number of people captured as part of the so-called global war on terror and held in undisclosed locations. Mr Kellenberger echoed previous official requests from the ICRC for information on these detainees and for eventual access to them, as an important humanitarian priority and as a logical continuation of the organization's current detention work in Guantánamo and Afghanistan."

"Human Rights Watch has conducted independent research on the existence of secret detention locations that corroborates The Washington Post 's allegations that there were detention facilities in Eastern Europe.

Specifically, we have collected information that CIA airplanes travelling from Afghanistan in 2003 and 2004 made direct flights to remote airfields in Poland and Romania. Human Rights Watch has viewed flight records showing that a Boeing 737, registration number N313P - a plane that the CIA used to move several prisoners to and from Europe, Afghanistan, and the Middle East in 2003 and 2004 - landed in Poland and Romania on direct flights from Afghanistan on two occasions in 2003 and 2004. Human Rights Watch has independently confirmed several parts of the flight records, and supplemented the records with independent research.

According to the records, the N313P plane flew from Kabul to northeastern Poland on September 22, 2003, specifically, to Szymany airport, near the Polish town of Szczytno, in Warmia-Mazuria province. Human Rights Watch has obtained information that several detainees who had been held secretly in Afghanistan in 2003 were transferred out of the country in September and October 2003. The Polish intelligence service maintains a large training facility and grounds near the Szymany airport. ...

On Friday, the Associated Press quoted Szymany airport officials in Poland confirming that a Boeing passenger plane landed at the airport at around midnight on the night of September 22, 2003. The officials stated that the plane spent an hour on the ground and took aboard five passengers with U.S. passports. ...

Further investigation is needed to determine the possible involvement of Poland and Romania in the extremely serious activities described in The Washington Post article. Arbitrary incommunicado detention is illegal under international law. It often acts as a foundation for torture and mistreatment of detainees. U.S. government officials, speaking anonymously to journalists in the past, have admitted that some secretly held detainees have been subjected to torture and other mistreatment, including waterboarding (immersing or smothering a detainee with water until he believes he is about to drown). Countries that allow secret detention programs to operate on their territory are complicit in the human rights abuses committed against detainees.

Human Rights Watch knows the names of 23 high-level suspects being held secretly by U.S. personnel at undisclosed locations. An unknown number of other detainees may be held at the request of the U.S. government in locations in the Middle East and Asia. U.S. intelligence officials, speaking anonymously to journalists, have stated that approximately 100 persons are being held in secret detention abroad by the United States.

Human Rights Watch emphasizes that there is no doubt that secret detention facilities operated by the United States exist. The Bush Administration has cited, in speeches and in public documents, arrests of several terrorist suspects now held in unknown locations. Some of the detainees cited by the administration include: Abu Zubaydah, a Palestinian arrested in Pakistan in March 2002; ... Abd al-Rahim al-Nashiri (also known as Abu Bilal al-Makki), arrested in United Arab Emirates in November 2002 ....

Human Rights Watch urges the United Nations and relevant European Union bodies to launch investigations to determine which countries have been or are being used by the United States for transiting and detaining incommunicado prisoners. The U.S. Congress should also convene hearings on the allegations and demand that the Bush administration account for secret detainees, explain the legal basis for their continued detention, and make arrangements to screen detainees to determine their legal status under domestic and international law. We welcome the decision by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe to examine the existence of U.S.-run detention centers in Council of Europe member states. We also urge the European Union, including the EU Counter-Terrorism Coordinator, to further investigate allegations and publish its findings."

"The following is a list of persons believed to be in U.S. custody as 'ghost detainees' - detainees who are not given any legal rights or access to counsel, and who are likely not reported to or seen by the International Committee of the Red Cross. The list is compiled from media reports, public statements by government officials, and from other information obtained by Human Rights Watch. Human Rights Watch does not consider this list to be complete: there are likely other 'ghost detainees' held by the United States.

Under international law, enforced disappearances occur when persons are deprived of their liberty, and the detaining authority refuses to disclose their fate or whereabouts, or refuses to acknowledge their detention, which places the detainees outside the protection of the law. International treaties ratified by the United States prohibit incommunicado detention of persons in secret locations.

Many of the detainees listed below are suspected of involvement in serious crimes, including the September 11, 2001 attacks; the 1998 U.S. Embassy bombings in Kenya and Tanzania; and the 2002 bombing at two nightclubs in Bali, Indonesia. ... Yet none on this list has been arraigned or criminally charged, and government officials, speaking anonymously to journalists, have suggested that some detainees have been tortured or seriously mistreated in custody.

The current location of these prisoners is unknown.

List, as of December 1, 2005:

...

...

VIII. SELECTED MEDIA REPORTS AND ARTICLES

A. International media

"Since Sept. 11, the U.S. government has secretly transported dozens of people suspected of links to terrorists to countries other than the United States, bypassing extradition procedures and legal formalities, according to Western diplomats and intelligence sources. The suspects have been taken to countries, including Egypt and Jordan, whose intelligence services have close ties to the CIA and where they can be subjected to interrogation tactics Including torture and threats to families - that are illegal in the United States, the sources said. In some cases, U.S. intelligence agents remain closely involved in the interrogation, the sources said.

After September 11, these sorts of movements have been occurring all the time', a US diplomat told the Washington Post . 'It allows us to get information from terrorists in a way we can't do on US soil'. ...

U.S. involvement in seizing terrorism suspects in third countries and shipping them with few or no legal proceedings to the United States or other countries - known as 'rendition' - is not new. In recent years, U.S. agents, working with Egyptian intelligence and local authorities in Africa, Central Asia and the Balkans, have sent dozens of suspected Islamic extremists to Cairo or taken them to the United States, according to U.S. officials, Egyptian lawyers and human rights groups. ..."

"The US has been secretly sending prisoners suspected of al-Qaida connections to countries where torture during interrogation is legal, according to US diplomatic and intelligence sources. Prisoners moved to such countries as Egypt and Jordan can be subjected to torture and threats to their families to extract information sought by the US in the wake of the September 11 attacks.

The normal extradition procedures have been bypassed in the transportation of dozens of prisoners suspected of terrorist connections, according to a report in the Washington Post. The suspects have been taken to countries where the CIA has close ties with the local intelligence services and where torture is permitted.

According to the report, US intelligence agents have been involved in a number of interrogations. A CIA spokesman yesterday said the agency had no comment on the allegations. A state department spokesman said the US had been 'working very closely with other countries' - it's a global fight against terrorism'. ...

The seizing of suspects and taking them to a third country without due process of law is known as 'rendition'. The reason for sending a suspect to a third country rather than to the US, according to the diplomats, is an attempt to avoid highly publicised cases that could lead to a further backlash from Islamist extremists. ...

The US has been criticised by some of its European allies over the detention of prisoners at Camp X-Ray in Guantánamo Bay, Cuba. After the Pentagon released pictures of blindfolded prisoners kneeling on the ground, the defence secretary, Donald Rumsfeld, was forced to defend the conditions in which they were being held. Unsuccessful attempts have been made by civil rights lawyers based in Los Angeles to have the Camp X-Ray prisoners either charged in US courts or treated as prisoners of war. The US administration has resisted such moves, arguing that those detained, both Taliban fighters and members of al-Qaida, were not entitled to be regarded as prisoners of war because they were terrorists rather than soldiers and were not part of a recognised, uniformed army."

"US officials have been discussing whether Zubaydah should be sent to countries, including Egypt or Jordan, where much more aggressive interrogation techniques are permitted. But such a move would directly raise a question of torture ... Officials have also discussed sending Zubaydah to Guantánamo Bay or to a military ship at sea. Sources say it's imperative to keep him isolated from other detainees as part of psychological warfare, and even more aggressive tools may be used."

"Zubaydah is in US custody, but it's unclear whether he remains in Pakistan, is among 20 al Qaeda suspects to be sent to the US naval station at Guantánamo Bay, Cuba, or will be transported to a separate location."

"US officials would not say where he was being held. But they did say he was not expected in the United States any time soon. He could eventually be held in Afghanistan, aboard a Navy ship, at the US base in Guantánamo Bay, Cuba, or transferred to a third country."

"a brass-knuckled quest for information, often in concert with allies of dubious human rights reputation; in which the traditional lines between right and wrong, legal and inhumane, are evolving and blurred. ...

'If you don't violate someone's human rights some of the time; you probably aren't doing your job,' said one official who has supervised the capture and transfer of accused terrorists."

"there were a number of secret detention centers overseas where US due process does not apply ... where the CIA undertakes or manages the interrogation of suspected terrorists ... off-limits to outsiders and often even to other government agencies. In addition to Bagram and Diego Garcia, the CIA has other detention centres overseas and often uses the facilities of foreign intelligence services".

The Washington Post also gave details on the rendition process:

"The takedown teams often 'package' prisoners for transport, fitting them with hoods and gags, and binding them to stretchers with duct tape."

"...NEWSWEEK has obtained previously unpublished flight plans indicating the agency has been operating a Boeing 737 as part of a top-secret global charter servicing clandestine interrogation facilities used in the war on terror. And the Boeing's flight information, detailed to the day, seems to confirm Masri's tale of abduction. ...

The evidence backing up Masri's account of being 'snatched' by American operatives is only the latest blow to the CIA in the ongoing detention-abuse scandal. Together with previously disclosed flight plans of a smaller Gulfstream V jet, the Boeing 737's travels are further evidence that a global 'ghost' prison system, where terror suspects are secretly interrogated, is being operated by the CIA. Several of the Gulfstream flights allegedly correlate with other 'renditions', the controversial practice of secretly spiriting suspects to other countries without due process. ..."

"The CIA has been hiding and interrogating some of its most important al Qaeda captives at a Soviet-era compound in Eastern Europe, according to U.S. and foreign officials familiar with the arrangement.

The secret facility is part of a covert prison system set up by the CIA nearly four years ago that at various times has included sites in eight countries, including Thailand, Afghanistan and several democracies in Eastern Europe, as well as a small center at the Guantánamo Bay prison in Cuba, according to current and former intelligence officials and diplomats from three continents.

The hidden global internment network is a central element in the CIA's unconventional war on terrorism. It depends on the cooperation of foreign intelligence services, and on keeping even basic information about the system secret from the public, foreign officials and nearly all members of Congress charged with overseeing the CIA's covert actions.

The existence and locations of the facilities - referred to as 'black sites' in classified White House, CIA, Justice Department and congressional documents - are known to only a handful of officials in the United States and, usually, only to the president and a few top intelligence officers in each host country.

...

Although the CIA will not acknowledge details of its system, intelligence officials defend the agency's approach, arguing that the successful defense of the country requires that the agency be empowered to hold and interrogate suspected terrorists for as long as necessary and without restrictions imposed by the U.S. legal system or even by the military tribunals established for prisoners held at Guantánamo Bay.

The Washington Post is not publishing the names of the Eastern European countries involved in the covert program, at the request of senior U.S. officials. They argued that the disclosure might disrupt counterterrorism efforts in those countries and elsewhere and could make them targets of possible terrorist retaliation.

...

It is illegal for the government to hold prisoners in such isolation in secret prisons in the United States, which is why the CIA placed them overseas, according to several former and current intelligence officials and other U.S. government officials. Legal experts and intelligence officials said that the CIA's internment practices also would be considered illegal under the laws of several host countries, where detainees have rights to have a lawyer or to mount a defense against allegations of wrongdoing.

Host countries have signed the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as has the United States. Yet CIA interrogators in the overseas sites are permitted to use the CIA's approved 'Enhanced Interrogation Techniques', some of which are prohibited by the U.N. convention and by U.S. military law. They include tactics such as 'waterboarding', in which a prisoner is made to believe he or she is drowning.

...

The contours of the CIA's detention program have emerged in bits and pieces over the past two years. Parliaments in Canada, Italy, France, Sweden and the Netherlands have opened inquiries into alleged CIA operations that secretly captured their citizens or legal residents and transferred them to the agency's prisons.

More than 100 suspected terrorists have been sent by the CIA into the covert system, according to current and former U.S. intelligence officials and foreign sources. This figure, a rough estimate based on information from sources who said their knowledge of the numbers was incomplete, does not include prisoners picked up in Iraq.

The detainees break down roughly into two classes, the sources said.

About 30 are considered major terrorism suspects and have been held under the highest level of secrecy at black sites financed by the CIA and managed by agency personnel, including those in Eastern Europe and elsewhere, according to current and former intelligence officers and two other U.S. government officials. Two locations in this category - in Thailand and on the grounds of the military prison at Guantánamo Bay - were closed in 2003 and 2004, respectively.

A second tier - which these sources believe includes more than 70 detainees - is a group considered less important, with less direct involvement in terrorism and having limited intelligence value. These prisoners, some of whom were originally taken to black sites, are delivered to intelligence services in Egypt, Jordan, Morocco, Afghanistan and other countries, a process sometimes known as 'rendition'. While the first-tier black sites are run by CIA officers, the jails in these countries are operated by the host nations, with CIA financial assistance and, sometimes, direction.

...

The top 30 al Qaeda prisoners exist in complete isolation from the outside world. Kept in dark, sometimes underground cells, they have no recognized legal rights, and no one outside the CIA is allowed to talk with or even see them, or to otherwise verify their well-being, said current and former and U.S. and foreign government and intelligence officials.

...

The Eastern European countries that the CIA has persuaded to hide al Qaeda captives are democracies that have embraced the rule of law and individual rights after decades of Soviet domination. Each has been trying to cleanse its intelligence services of operatives who have worked on behalf of others - mainly Russia and organized crime.

...

By mid-2002, the CIA had worked out secret black-site deals with two countries, including Thailand and one Eastern European nation, current and former officials said. An estimated $100 million was tucked inside the classified annex of the first supplemental Afghanistan appropriation. ..."

"Two CIA secret prisons were operating in Eastern Europe until last month when they were shut down following Human Rights Watch reports of their existence in Poland and Romania.

Current and former CIA officers speaking to ABC News on the condition of confidentiality say the United States scrambled to get all the suspects off European soil before Secretary of State Condoleezza Rice arrived there today. The officers say 11 top al Qaeda suspects have now been moved to a new CIA facility in the North African desert.

CIA officials asked ABC News not to name the specific countries where the prisons were located, citing security concerns.

The CIA declines to comment, but current and former intelligence officials tell ABC News that 11 top al Qaeda figures were all held at one point on a former Soviet air base in one Eastern European country. Several of them were later moved to a second Eastern European country.

All but one of these 11 high-value al Qaeda prisoners were subjected to the harshest interrogation techniques in the CIA's secret arsenal, the so-called 'enhanced interrogation techniques' authorized for use by about 14 CIA officers and first reported by ABC News on Nov. 18.

Rice today avoided directly answering the question of secret prisons in remarks made on her departure for Europe, where the issue of secret prisons and secret flights has caused a furor.

Without mentioning any country by name, Rice acknowledged special handling for certain terrorists. ' The captured terrorists of the 21st century do not fit easily into traditional systems of criminal or military justice, which were designed for different needs. We have had to adapt' , Rice said.

The CIA has used a small fleet of private jets to move top al Qaeda suspects from Afghanistan and the Middle East to Eastern Europe, where Human Rights Watch has identified Poland and Romania as the countries that housed secret sites.

But Polish Defense Minister Radosław Sikorski told ABC Chief Investigative Correspondent Brian Ross today: ' My president has said there is no truth in these reports .'

Ross asked: ' Do you know otherwise, sir, are you aware of these sites being shut down in the last few weeks, operating on a base under your direct control?' Sikorski answered, ' I think this is as much as I can tell you about this '.

In Romania, where the secret prison was possibly at a military base visited last year by Defense Secretary Donald Rumsfeld, the new Romanian prime minister said today there is no evidence of a CIA site but that he will investigate.

Sources tell ABC that the CIA's secret prisons have existed since March 2002 when one was established in Thailand to house the first important al Qaeda target captured. Sources tell ABC that the approval for another secret prison was granted last year by a North African nation.

Sources tell ABC News that the CIA has a related system of secretly returning other prisoners to their home country when they have outlived their usefulness to the United States.

These same sources also tell ABC News that U.S. intelligence also ships some 'unlawful combatants' to countries that use interrogation techniques harsher than any authorized for use by U.S. intelligence officers. They say that Jordan, Syria, Morocco and Egypt were among the nations used in order to extract confessions quickly using techniques harsher than those authorized for use by U.S. intelligence officers. These prisoners were not necessarily citizens of those nations.

According to sources directly involved in setting up the CIA secret prison system, it began with the capture of Abu Zabayda in Pakistan. After treatment there for gunshot wounds, he was whisked by the CIA to Thailand where he was housed in a small, disused warehouse on an active airbase. There, his cell was kept under 24-hour closed circuit TV surveillance and his life-threatening wounds were tended to by a CIA doctor specially sent from Langley headquarters to assure Abu Zubaydah was given proper care, sources said. Once healthy, he was slapped, grabbed, made to stand long hours in a cold cell, and finally handcuffed and strapped feet up to a water board until after 0.31 seconds he begged for mercy and began to cooperate. ..."

"In northern Bucharest, in a busy residential neighbourhood minutes from the heart of the capital city, is a secret the Romanian government has long tried to protect.

For years, the CIA used a government building -� codenamed 'Bright Light' -� as a makeshift prison for its most valuable detainees. ...

The existence of a CIA prison in Romania has been widely reported, but its location has never been made public. The Associated Press and German public television ARD located the former prison and learned details of the facility where harsh interrogation tactics were used. ARD's programme on the CIA prison is set to air today.

The Romanian prison was part of a network of so-called black sites that the CIA operated and controlled overseas in Thailand, Lithuania and Poland. All the prisons were closed by May 2006, and the CIA's detention and interrogation programme ended in 2009.

Unlike the CIA's facility in Lithuania's countryside or the one hidden in a Polish military installation, the CIA's prison in Romania was not in a remote location. It was hidden in plain sight, a couple blocks off a major boulevard on a street lined with trees and homes, along busy train tracks.

The building is used as the National Registry Office for Classified Information, which is also known as ORNISS. Classified information from NATO and the European Union is stored there. Former intelligence officials both described the location of the prison and identified pictures of the building.

In an interview at the building in November [2011], senior ORNISS official Adrian Camarasan said the basement is one of the most secure rooms in all of Romania. But he said Americans never ran a prison there.

' No, no. Impossible, impossible ,' he said in an ARD interview for its 'Panorama news broadcast, as a security official monitored the interview.

The CIA prison opened for business in the autumn of 2003, after the CIA decided to empty the black site in Poland, according to former US officials.

Shuttling detainees into the facility without being seen was relatively easy. After flying into Bucharest, the detainees were brought to the site in vans. CIA operatives then drove down a side road and entered the compound through a rear gate that led to the actual prison.

The detainees could then be unloaded and whisked into the ground floor of the prison and into the basement.

The basement consisted of six prefabricated cells, each with a clock and arrow pointing to Mecca, the officials said. The cells were on springs, keeping them slightly off balance and causing disorientation among some detainees.

The CIA declined to comment on the prison. ...

Former US officials said that because the building was a government installation, it provided excellent cover. The prison didn't need heavy security because area residents knew it was owned by the government. People wouldn't be inclined to snoop in post-communist Romania, with its extensive security apparatus known for spying on the country's own citizens.

Human rights activists have urged the Eastern European countries to investigate the roles their governments played in hosting the prisons in which interrogation techniques such as waterboarding were used. Officials from these countries continue to deny these prisons ever existed.

'We know of the criticism, but we have no knowledge of this subject', Romanian President Traian Băsescu said in a September [2011] interview with AP. ...

The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries."

B. Romanian media

"British officials who made a visit to the prison at Guantánamo at the end of last week presented a report to the British government on the manner in which Taliban and Al-Qaida prisoners are treated. The authorities in London are going to study it in detail given that criticism towards Americans has grown in recent days about the treatment applied to prisoners at Guantánamo. Films depicting prisoners blindfolded and chained by their hands and feet, with masks covering their mouth and nose and kneeling before their guards, have led to public concern and condemnation in many countries of the world. Great Britain, the main ally of the USA, was among the first countries in which politicians referred to the images as 'shocking' and the manner in which prisoners were treated as 'monstrous'.

Following pressure from public opinion, the British Foreign Secretary, Jack Straw has asked the Americans to treat hostages from Afghanistan 'humanely'. The USA stated that the images presented depicted prisoners at their time of arrival at Guantánamo and are not representative of how they are treated in prison on a daily basis. For now, the officials from London who visited the prison at Guantánamo stated that the three Britons being held there have not formulated 'any complaint' in relation to the manner in which they are treated.

Disputes between the Americans and British on this topic are the first visible sign of dissent between the two allies since the start of the anti-terrorist campaign. According to British officials, the 144 prisoners who have already arrived at Guantánamo are housed in spaces that look like cages, separated by wire. London is of the view that this kind of 'degrading' treatment" is 'counterproductive', and diminishes the chances of the secret services of obtaining information on potential terrorists from the Muslim community. ..."

"The treatment of Taliban and Al-Qaida detainees by American troops at the X-Ray detention centre of the Guantánamo Bay American military base, Cuba 'will lead to a considerable increase in the number of recruits' that will join Islamic terrorist groups, stated Hassan Yousef on Sunday, the leader of Hamas, the extremist organization found on the list of targets in the war on terrorism drawn up by the United States. ... 'The Mirror', after the international press published a photograph at the end of last week of a detainee taken to interrogation strapped to a stretcher. ...Questioned even from the beginning by European allies, the treatment applied to prisoners captured by US forces in Afghanistan, creates new waves these days both in Europe and overseas. After the former American Secretary of State, Madeline Albright criticized the manner in which the Bush administration decided to treat Guantánamo Bay prisoners (Washington does not consider that the status of prisoner of war applies to Al-Qaida mercenaries). The latest spark to rekindle the controversy about the X-Ray detention center, the picture shown here, caused a powerful storm in Great Britain. On Sunday, Prime Minister Tony Blair made a fierce attack on the weekly newspaper 'The Mail on Sunday' accusing it of undermining the war on terrorism after this newspaper published an article on its first page in which it suggested that American investigators had interrogated detainees who were unconscious, or in other words, under the influence of drugs. According to experts however, the fact that the photographed detainee had his knees bent is proof that he was conscious at the time that he was photographed. ..."

"The 'American Taliban' John Walker Lindh has been mistreated by American authorities during the time he has been in detention, stated his lawyers in a document sent to the judge, reported newspaper 'The Los Angeles Times'. 'The American Taliban', John Walker Lindh, stated in a document submitted to the Court that he had been mistreated by American Authorities during the time he has spent in detention. John Walker Lindh, aged 21 years of age, was captured in the North of Afghanistan. Lindh 'was blindfolded, and his handcuffs were so tight that they stopped his blood circulation', his lawyers added, who claimed that American soldiers 'threatened him with death and torture'. He was given very little food and did not have the right to receive medical care. The defense claimed that 'The American Taliban' had his clothes cut up and remained 'completely naked' and was transported 'in a metal transport container' where there was no source of heat or lighting."

"Investigators from the Central Intelligence Agency of the United States (CIA) used stressful and violent interrogation techniques against enemies captured in Afghanistan, that came somewhere between the 'boundary of legal and inhuman' writes The Washington Post newspaper. The prestigious American newspaper describes metal containers which it says were secret CIA interrogation centers at the Bagram airbase which was the Headquarters of the American forces involved in operations to capture members of al-Qaeda and Taliban leaders.

Prisoners who refused to cooperate were kept kneeling for several hours with their eyes covered with black cloth or by tinted glasses. On other occasions, prisoners were forced to adopt strange or painful positions and being also deprived of rest - 'were subject to a process known by the technical name 'stress and endurance'. ... The CIA refrained from commenting on the article that appeared in The Washington Post.

According to the figures begrudgingly provided by the American authorities, approximately 3000 members have al-Qaeda have been arrested until now, of which 625 are being held at Guantánamo Bay and approximately 100 more have been 'transferred' to other countries. A few thousand prisoners were arrested and imprisoned with assistance from the United States in countries known and recognized for their brutal treatment of prisoners. The Washington Post adds the fact that the Bush administration applied this kind of policy which was contrary to publicly expressed values, because it had doubts that the American public would support its position."

"American troops in Iraq used a refined form of torture to break the resistance of prisoners and make them talk, according to American magazine Newsweek . Stubborn prisoners were 'bombarded' with heavy metal music played at maximum volume over long periods of time until their nerves gave out. ... The idea is to break a person's resistance by upsetting him with music that an Iraqi considers to be offensive from a cultural point of view, explained Sergeant Mark Hadsell. 'These people never listened to heavy metal in their life and they can't stand it', he added. ...

Iraqis tortured in war camps

These revelations come two days after Amnesty International representatives returning from Iraq stated that many former prisoners, the majority of them civilians, complained that they have been tortured during their detention in camps set up by British and American troops. At least 20 prisoners stated that they were beaten hours on end, and another, a Saudi citizen, said that he was subjected to electric shocks. The Amnesty International Investigation is continuing, with a manager from the organization claiming that we are certainly talking about cases of torture. At the time that the report is completed, Amnesty International will ask American and British authorities to reply to the accusations made by prisoners."

C. Der Spiegel's publications in 2014 and 2015

"There was at least one CIA prison in Romania - that is what the US torture report says. Politicians of that country had always denied this. Now the former Romanian spy chief speaks about a 'transit centre' of the US secret service.

Romanian politicians denied it for almost a decade - but now there is, for the first time, a confession: there were CIA centres in Romania, in which captives were held and possibly also tortured.

The former Romanian spy chief Ioan Talpeş told SPIEGEL ONLINE that there were one or two locations in Romania, at which the CIA 'probably held persons, who were subjected to inhuman treatment'. This was the case in the period from 2003 to 2006. Talpeş had previously confirmed the existence of 'CIA transit camp', as he calls them, in the Bucharest daily ' Adevărul '.

Talpeş is 70 years old now. From 1992 to 1997 he led the Romanian secret service abroad, SIE, and from 2000 to 2004 he served as the Chief of the Presidential Administration as well as the head of the National Security Department.

Talpeş told SPIEGEL ONLINE that he had, from 2003 onwards, continued discussions with officials of the CIA and the US military about a more intense cooperation. In the context of these discussions it was agreed that the CIA could carry out its own activities in certain locations.

'It was up to the Americans what they did in these places'

He did not know where this was and Romania was, expressly, not interested in what the CIA was doing there. The country wanted to prove its readiness to cooperate, Talpeş said, because it sought NATO-membership. 'It was up to the Americans what they did in these places', he said. First and foremost thanks to US advocacy, Romania was admitted into NATO in 2004.

Dick Marty, the Council of Europe special investigator concerning the secret CIA prisons, had accused Romania in 2005/2006 of hosting illegal CIA prisons for terrorism suspects on its territory. Amnesty International had previously made similar allegations. Among others, the key planner of 9/11 , Khalid Sheikh Mohammed, is said to have been held there.

Romanian politicians, including Presidents Ion Iliescu (in office from 2000 to 2004) and Traian Băsescu (in office from 2004 to 2014) had always denied this. A commission of inquiry of the Romanian parliament reported in 2006: there were no CIA prisons in the country and no CIA captives were held there or transferred to other countries on transit flights via Romania.

Since 2001, the US army has had an air base close to Kogălniceanu in the South East of Romania. Apart from that base, the airports in Craiova in Southern Romania and in Temeswar in Western Romania are reported to have been used for the transport of CIA captives. Already in 2002 Romania signed an agreement with the USA, according to which the country would not extradite US soldiers to the International Criminal Court.

Even after the publication of the CIA torture report, in which a Romanian CIA prison is mentioned as a 'black site', Romanian politicians denied its existence. Victor Ponta, the head of the government, declined to comment on the CIA report.

The former Head-of-State Iliescu said on Wednesday that he had had no knowledge of a CIA prison. However, Ioan Talpeş told SPIEGEL ONLINE that he had informed President Iliescu in 2003 and 2004 that the CIA carried out 'certain activities' on Romanian territory. At that time, Talpeş continued, he himself did not think that the CIA could possibly torture captives. Therefore, 'no major significance' was attributed to information about the activities of the US secret service in Romania.

In response to the question why he had not shared his knowledge when the Council of Europe special investigator, Dick Marty, presented his report, Talpeş stated that he had been unable to speak for as long as the competent US authorities had not expressed themselves on the matter. In this respect he blamed Romanian politicians for denying the existence of the transit camps."

"The CIA tortured in Romania - that is an open secret. Only the country's officials never wanted to acknowledge that. Now former Head-of-State Iliescu states in SPIEGEL ONLINE: he left a location to the secret service.

It is hardly disputed any longer that the CIA entertained one or more secret prisons in Romania following the attacks of 11 September 2001. The CIA report on torture of last December speaks, in a somewhat cryptic way, of 'Detention Site Black'. Several of the most important CIA captives, among them the key planner of 9/11 , Khalid Sheikh Mohammed, are said to have been held and tortured in Romania between 2002 and 2006.

Despite numerous indications, Romanian officials for years vehemently denied that there had been secret CIA prisons on the country's territory. Now, the late confession concerning the Romanian 'Detention Site' comes from nobody less than the former Head-of-State Ion Iliescu, who was in office from 2000 to 2004.

In an interview with SPIEGEL ONLINE, Iliescu stated that around the turn of the year 2002/2003, 'our US allies asked us for a site'. He, as Head-of-State, did, in principle, grant this request. The details were taken care of by Ioan Talpeş , who, at the time, was the head of the National Security Department and the chief of the Presidential Administration.

By virtue of this statement, the 85 year-old Iliescu becomes the second Head-of-State - following the former Polish Head-of-State Aleksander Kwaśniewski - to admit the former existence of a CIA prison on behalf of his country.

Iliescu explicitly wants to speak of a location/site (' Standort ') - he claims not to have known of a prison. 'It was about a gesture of courtesy ahead of our accession to NATO', Iliescu told SPIEGEL ONLINE.

'We did not interfere with the activities of the USA on this site. This request seemed like a minor issue to me as the Head-of-State. We were allies, we went to war together in Afghanistan and in the Middle East. Therefore, I did not go into detail when our allies requested a specific site in Romania'.

Had he known more at that time, Iliescu continued, the request would 'of course not' have been responded to positively. 'We learned from this experience to be more attentive in relation to such requests in the future and to ponder more scrupulously'.

Iliescu gave the CIA 'plenty of rope'

Talpeş, the former chief of Iliescu's Presidential Administration, had previously led the Romanian secret service abroad, SIE. Vis-à-vis SPIEGEL ONLINE he admitted already last year, as the first Romanian official, the existence of 'CIA transit centres'. Talpeş also confirmed Iliescu's statements now.

He had received a request from a representative of the CIA in Romania at the turn of the year 2002/2003 for premises, which the US secret service needed for its own activities. Iliescu gave him 'plenty of rope' to take care of this request. He arranged for a building in Bucharest to be given to the CIA. This building was used by the CIA from 2003 to 2006. It did no longer exist. He would not reveal where exactly this building was located.

Talpeş thereby corrected his earlier statement that he did not know the location of the CIA transit centres. He now states that the only thing he did not know, was whether the CIA also used the US air base in Kogălniceanu in South East Romania. Also, he never visited any of the 'CIA sites' personally. With regard to the premises in Bucharest, he was aware that 'the matter [could] become dangerous'. Therefore, he explicitly told the CIA representatives that Romania did not want to know anything about the activities on these premises. At the time, he wanted to prove Romania's loyalty to the alliance in the period of the NATO accession through this measure.

The statements by Iliescu and Talpeş confirm the 2006/2007 reports by former special investigator of the Council of Europe concerning the secret CIA prisons, Dick Marty. Marty had, already at that time, accused Romania of hosting secret CIA prisons on its territory. Romanian officials and politicians, among them Iliescu, had disputed the allegations. According to Marty's 2007 report, at least five high-ranking Romanian officials were informed about the existence of the secret CIA prisons. Besides Iliescu and Talpeş this included the former Head of State Traian Băsescu, who was in office from 2004 to 2014. Băsescu did not want to comment on the matter following a query from SPIEGEL ONLINE.

' We did not have any clues back then'

In 2008 a commission of inquiry of the Romanian parliament had concluded that there had not been any secret CIA prisons in Romania and that there was no information on CIA-flights or transports of captives. The former head of this commission, the politician of the Liberals and current Member of the European Parliament, Norica Nicolai, adheres to this statement to the present day. 'We did not have any clues back then', Nicolai told SPIEGEL ONLINE.

However, the chairperson of the Romanian human rights organisation APADOR-CH, Maria Nicoleta Andreescu, describes the work of the commission as 'totally inefficient and frivolous'. APADOR-CH, inter alia , represents the former CIA captive Abd al-Rahim al-Nashiri in Romania. He is said to have planned the attack on the destroyer U.S.S. ' Cole ' in Yemen in October 2000. He was supposedly kept and tortured in Romania between 2003 and 2006. In 2012 Al-Nashiri took legal action against the State of Romania, which is still pending.

The APADOR-CH chairperson Andreescu describes Iliescu's present confession on CIA prisons in Romania as a 'very important and significant statement'. 'If the Romanian State is willing to clarify the question of CIA prisons, then the public prosecutor must open criminal investigations following this statement', Andreescu said."

IX. INTERNATIONAL INQUIRIES RELATING TO THE CIA SECRET DETENTION AND RENDITION OF SUSPECTED TERRORISTS IN EUROPE, INCLUDING ROMANIA

A. Council of Europe

(a) The 2006 Marty Report

"7. This was the news item circulated in early November 2005 by the American NGO Human Rights Watch (HRW), The Washington Post and the ABC television channel. Whereas The Washington Post did not name specific countries hosting, or allegedly having hosted, such detention centres, simply referring generically to 'eastern European democracies', HRW reported that the countries in question are Poland and Romania. On 5 December 2005, ABC News in turn reported the existence of secret detention centres in Poland and Romania, which had apparently been closed following The Washington Post's revelations. According to ABC, 11 suspects detained in these centres had been subjected to the harshest interrogation techniques (so-called enhanced interrogation techniques') before being transferred to CIA facilities in North Africa.

"22. There is no formal evidence at this stage of the existence of secret CIA detention centres in Poland, Romania or other Council of Europe member states, even though serious indications continue to exist and grow stronger. Nevertheless, it is clear that an unspecified number of persons, deemed to be members or accomplices of terrorist movements, were arbitrarily and unlawfully arrested and/or detained and transported under the supervision of services acting in the name, or on behalf, of the American authorities. These incidents took place in airports and in European airspace, and were made possible either by seriously negligent monitoring or by the more or less active participation of one or more government departments of Council of Europe member states."

"56. Romania is thus far the only Council of Europe member State to be located on one of the rendition circuits we believe we have identified and which bears all the characteristics of a detainee transfer or drop-off point. The N313P rendition plane landed in Timișoara at 11.51 pm on 25 January 2004 and departed just 72 minutes later, at 1.03 am on 26 January 2004. I am grateful to the Romanian Civil Aeronautic Authority for confirming these flight movements.

...

"230. It has to be said that most governments did not seem particularly eager to establish the alleged facts. The body of information gathered makes it unlikely that European states were completely unaware of what, in the context of the fight against international terrorism, was happening at some of their airports, in their airspace or at American bases located on their territory. Insofar as they did not know, they did not want to know. It is inconceivable that certain operations conducted by American services could have taken place without the active participation, or at least the collusion, of national intelligence services. If this were the case, one would be justified in seriously questioning the effectiveness, and therefore the legitimacy, of such services. The main concern of some governments was clearly to avoid disturbing their relationships with the United States, a crucial partner and ally. Other governments apparently work on the assumption that any information learned via their intelligence services is not supposed to be known."

"253. To my knowledge, no parliamentary inquiry whatsoever has taken place in either country, despite the particularly serious and concrete nature of the allegations made against both. ..."

"280. Our analysis of the CIA rendition' programme has revealed a network that resembles a 'spider's web' spun across the globe. The analysis is based on official information provided by national and international air traffic control authorities, as well as other information including from sources inside intelligence agencies, in particular the American. This 'web', shown in the graphic, is composed of several landing points, which we have subdivided into different categories, and which are linked up among themselves by civilian planes used by the CIA or military aircraft.

...

...

- Sweden, in the cases of Ahmed Agiza and Mohamed Alzery;

- Bosnia-Herzegovina, in the cases of Lakhdar Boumediene, Mohamed Nechle, Hadj Boudella, Belkacem Bensayah, Mustafa Ait Idir and Saber Lahmar (the 'Algerian six');

- The United Kingdom in the cases of Bisher Al-Rawi, Jamil El-Banna and Binyam Mohamed;

- Italy, in the cases of Abu Omar and Maher Arar;

- 'The former Yugoslav Republic of Macedonia', in the case of Khaled El-Masri;

- Germany, in the cases of Abu Omar, of the 'Algerian six', and Khaled El-Masri;

- Turkey, in the case of the 'Algerian six'.

- Poland and Romania, concerning the running of secret detention centres;

- Germany, Turkey, Spain and Cyprus for being 'staging points' for flights involving the unlawful transfer of detainees."

(b) The 2007 Marty Report

"7. There is now enough evidence to state that secret detention facilities run by the CIA did exist in Europe from 2003 to 2005, in particular in Poland and Romania. These two countries were already named in connection with secret detentions by Human Rights Watch in November 2005. At the explicit request of the American government, The Washington Post simply referred generically to 'eastern European democracies', although it was aware of the countries actually concerned. It should be noted that ABC did also name Poland and Romania in an item on its website, but their names were removed very quickly in circumstances which were explained in our previous report. We have also had clear and detailed confirmation from our own sources, in both the American intelligence services and the countries concerned, that the two countries did host secret detention centres under a special CIA programme established by the American administration in the aftermath of 11 September 2001 to 'kill, capture and detain' terrorist suspects deemed to be of 'high value'. Our findings are further corroborated by flight data of which Poland, in particular, claims to be unaware and which we have been able to verify using various other documentary sources.

...

"75. The need for unprecedented permissions, according to our sources, arose directly from the CIA's resolve to lay greater emphasis on the paramilitary activities of its Counterterrorism Center in the pursuit of high-value targets, or HVTs. The US Government therefore had to seek means of forging intergovernmental partnerships with well-developed military components, rather than simply relying upon the existing liaison networks through which CIA agents had been working for decades.

...

...."

"112. Despite the importance of the multilateral NATO framework in creating the broad authorisation for US counter-terrorism operations, it is important to emphasise that the key arrangements for CIA clandestine operations in Europe were secured on a bilateral level.

...

"128. For reasons of both security and capacity, the CIA determined that the Polish strand of the HVD programme should remain limited in size. Thus a 'second European site' was sought to which the CIA could transfer its detainees with 'no major logistical overhaul'. Romania, used extensively by United States forces during Operation Iraqi Freedom in early 2003, had distinct benefits in this regard: as a member of the CIA's Counterterrorist Centre remarked about the location of the proposed detention facility, 'our guys were familiar with the area'.

...

"211. During several months of investigations, our team has held discussions with numerous Romanian sources, including civilian and military intelligence operatives, representatives of state and municipal authorities, and high-ranking officials who hold first-hand knowledge of CIA operations on the territory of Romania. Based upon these discussions, my inquiry has concluded that the following individual office-holders knew about, authorised and stand accountable for Romania's role in the CIA's operation of 'out-of-theatre' secret detention facilities on Romanian territory, from 2003 to 2005: the former President of Romania (up to 20 December 2004), Ion ILIESCU, the current President of Romania (20 December 2004 onwards), Traian BASESCU, the Presidential Advisor on National Security (until 20 December 2004), Ioan TALPEŞ , the Minister of National Defence (Ministerial oversight up to 20 December 2004), Ioan Mircea PASCU, and the Head of Directorate for Military Intelligence, Sergiu Tudor MEDAR.

...

" a. Creating a secure area for CIA transfers and detentions

...

"227. Our efforts to obtain accurate actual flight records pertaining to the movements of aircraft associated with the CIA in Romania were characterised by obfuscation, inconsistency and genuine confusion. ...

(c) The 2011 Marty Report

Paragraph 41 related to Romania. Its relevant part read:

"41. In Romania, parliament has also conducted no more than a superficial inquiry, of which a critical presentation was already given in my 2007 report. Unfortunately, there has been nothing to add since then."

"11. With regard to judicial inquiries, the Assembly:

...

11.4. calls on the judicial authorities of Romania and of 'the former Yugoslav Republic of Macedonia' to finally initiate serious investigations following the detailed allegations of abductions and secret detentions in respect of those two countries, and on the American authorities to provide without further delay the judicial assistance requested by the prosecuting authorities of the European countries concerned.

...

...

12.4. deplores the fact that the Polish and Romanian Parliaments confined themselves to inquiries whose main purpose seems to have been to defend the official position of the national authorities ..."

B. European Parliament

plane N313P

plane N85VM

plane N379

plane N1HC

" Afghanistan, Kabul + Bagram US Air Base: 5 flights

N313P: Kabul-� via Szymany, Poland - Bucharest, 22.09.2003

N313P: Kabul-� Timișoara, 25.01.2004

N739P: Bucharest - via Amman, Jordan - Kabul, 25.10.2003

N478GS: Bucharest - Bagram US Air Base, 05.12.2004

N478GS: Bagram US Air Base - Bucharest, 06.12.2004

Jordan, Amman: 8 flights

N58VM: Amman - Constanţa , 26.01.2004

N58VM: Amman - Constanţa , 01.10.2004

N739P: Bucharest - Amman, 25.10.2003

N2189M: Amman - Constanţa , 13.06.2003

N2189M: Constanţa - Amman, 14.06.2003

N1HC: Bucharest - Amman, 05.11.2005

N187D: Bucharest - Amman, 27.08.2004

N4456A: Bucharest - via Athens, Greece - Amman, 25.08.2004

Morocco, Rabat + Casablanca: 2 flights

N313P: Bucharest - Rabat, 22.09.2003

N58VM: Bucharest - Casablanca, 12.04.2004

Cuba, Guantánamo:

N313P: Bucharest - via Rabat, Morocco - Guantánamo , 23.09.2003

N85VM: Guantánamo - via Tenerife, Spain - Constanţa , 12.04.2004."

"A) ALLEGED EXISTENCE OF DETENTION CENTRES

Suspected airports supposed to host secret detention centres have been mentioned in mass-media, in some NGOs' reports, in Council of Europe's report and have also been inferred from Eurocontrol data, as well as from pictures taken via satellite. These airports are:

Timișoara - Gearmata

București - Băneasa

Constanţa - Kogălniceanu

Cataloi - Tulcea

Fetești - military"

As regards the parliamentary inquiry conducted in Romania (see also paragraphs 165-169 above), the document read, in so far as relevant, as follows:

"B) NATIONAL OFFICIAL INQUIRIES

Parliament

A Temporary Inquiry Committee in the Romanian Senate on the Allegations Regarding the Existence of CIA Detention Centres or Flights over Romania's Territory was set up on 21 st December 2005.

On 16 June 2006, Ms Norica Nicolai, president of the Special Inquiry Committee presented during a press conference the conclusions of the preliminary report. At that stage, only the chapter 7 of the report was made public and the rest of the report remained classified.

...

The Committee's term of office has been extended by a Senate's decision on 21 June 2006 following a number of incidents, such as the investigation of the accident involving the Gulfstream aircraft N478GS on 6 December 2004 and the televised statements made by a young Afghan claiming to have been detained in Romania. The Committee's activity is ongoing and during the Senate sittings of 22 November 2006 a new deadline for submitting the final report has been settled: 05 March 2007."

"C) ROLE OR ATTITUDE OF ROMANIAN BODIES

Since the publication of the first news about alleged existence of the CIA prisons and illegal transportation of prisoners, Romanian official position has moved from a first categorical denial that CIA secret prisons could be hosted in Romania and that CIA flights could have landed in this country to a less firm and more doubtful attitude, which confirms that something clandestine, not supposed to be known by Romanian authorities, could have happened either on the planes or in the areas controlled by the American authorities.

Cooperation of official authorities with the Temporary Committee's delegation was very high.

They claimed that nobody could have thought that human rights violations could have been taking place on Romanian territory and they confirmed that individuals, goods and other equipment circulating on Romanian territory were subject to checks by Romanian officials or military personnel.

On 10th November 2005, President Băsescu denied during his visit in Bratislava, the existence of CIA detention centres on Romanian territory. One week after, he declared to be at the disposal of any institution that would like to verify the existence of CIA secret detention sites in Romania. In the same line with the declaration of Mr Băsescu were also the declarations of former minister for external affairs, Mr. Mircea Geoană and of the spokesperson of Romanian Secret Service (SRI), Mr. Marius Beraru.

On 20th November 2005, former Romanian minister for defence, Mr Ioan Mircea Pascu, stated in an interview for Associated Press that the Romanian authorities did not have access to certain sites used by U.S. services in Romania. He came back to this declaration, later on, saying that his comments were taken out of the context.

Regarding the accident involving the Gulfstream aircraft N478GS on 6 December 2004 the position of the Romanian authorities differed in some extent: Ms Norica Nicolai, chairperson of the Romanian Senate's Special Committee of Inquiry pretended not being able to make available to the delegation the report drawn up by the frontier police on the mentioned accident by invocating the law on data protection. On the other hand, Mr. Anghel Andreescu, Secretary of State for Public Order and Security at the Ministry of Interior and Public Administration, willingly agreed after meeting the TDIP delegation to forward this report and only the following day after receiving it Mr Coelho, chairman of the delegation, was informed that this document has to remain confidential."

"D) FLIGHTS

Total Flights Number since 2001: 21

Principal airports : Kogălniceanu, Timișoara, Otopeni, Băneasa

Suspicious destinations and origins : Guantánamo, Cuba; Amman, Jordan; Kabul, Bagram US airbase, Afghanistan; Rabat, Morocco; Baghdad, Iraq.

Stopovers of planes transited through Romania and used in other occasions for extraordinary renditions :

N379P , used for the extraordinary renditions of: Al Rawi and El Banna; Benyam Mohammed; Kassim Britel and the expulsion of Agiza and El Zari: 1 stopover in Romania

N313P , used for the extraordinary renditions of Khalid El Masri and Benyamin Mohamed: 2 stopovers in Romania

N85VM , used for the rendition of Abu Omar: 3 stopovers in Romania."

" The European Parliament,

...

J. whereas on 6 September 2006, US President George W. Bush confirmed that the Central Intelligence Agency (CIA) was operating a secret detention programme outside the United States,

K. whereas President George W. Bush said that the vital information derived from the extraordinary rendition and secret detention programme had been shared with other countries and that the programme would continue, which raises the strong possibility that some European countries may have received, knowingly or unknowingly, information obtained under torture,

L. whereas the Temporary Committee has obtained, from a confidential source, records of the informal transatlantic meeting of European Union (EU) and North Atlantic Treaty Organisation (NATO) foreign ministers, including US Secretary of State Condoleezza Rice, of 7 December 2005, confirming that Member States had knowledge of the programme of extraordinary rendition, while all official interlocutors of the Temporary Committee provided inaccurate information on this matter,"

"9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;

...

...

...

...

..."

"ROMANIA

[ The European Parliament ]

"[The European Parliament ,]

"12. Notes that the parliamentary inquiry carried out in Romania concluded that no evidence could be found to demonstrate the existence of a secret CIA detention site on Romanian territory; calls on the judicial authorities to open an independent inquiry into alleged CIA secret detention sites in Romania, in particular in the light of the new evidence on flight connections between Romania and Lithuania;"

" "[The European Parliament ,]

"[ The European Parliament] ,

...

G. whereas the in-depth investigative work broadcast on the Antena 1 television channel in April 2013 provided further indications of Romania's central role in the prison network; whereas former national security advisor Ioan Talpeş stated that Romania provided logistical support for the CIA; whereas a former Romanian senator admitted the limitations of the previous parliamentary inquiry and called for prosecutors to initiate judicial proceedings;"

Paragraph 5, which concerned Romania, read:

" [ The European Parliament ,]

"The next morning we met with the Prosecutor General of Romania. He is called Mr. Tiberiu, Mihail Nitu. And he did hide behind the secrecy of the inquiry. But he was able to tell us that he had no proof whatsoever that Mr al Nashiri, who has an ongoing case in the European Court of Human Rights, that he has been detained in Romania. He was denying that, saying that no proof whatsoever. I am not optimistic as to what will come out of this inquiry. To my question on how many witnesses he had heard, how many hotels were in some kilometres around the supposed detention centre, I got the impression that no real inquiry was being carried out. And nobody wanted to help us to get access to the ORNISS centre. We really insisted meeting with the Secretary of State but there was clear instructions to deny us, and no argumentation whatsoever was received."

"[The European Parliament ,]

"N. whereas it is regrettable that the members of the fact-finding mission to Bucharest of Parliament's Committee on Civil Liberties, Justice and Home Affairs were not able to visit the National Registry Office for Classified Information (ORNISS) building, reported to have been used as a secret CIA detention site; ..."

In respect of Romania, the resolution further stated:

"[The European Parliament ,]

...

...

...

C. The 2007 ICRC Report

" 1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM

... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or in combination, in addition to the deprivation of other basic material requirements.

...

... Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantánamo in September 2006.

The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.

The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.

In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees' feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.

...[T]hese transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. ...

1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTION

Throughout the entire period during which they were held in the CIA detention program - which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years - the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real - let alone regular - contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.

None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.

In addition, the detainees were denied access to an independent third party. ...

1.3. OTHER METHODS OF ILL-TREATMENT

... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.

...

1.4. FURTHER ELEMENTS OF THE DETENTION REGIME

The conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.

In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parties, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.

The situation was further exacerbated by the following aspects of the detention regime:

-� Deprivation of access to the open air

-� Deprivation of exercise

-� Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation

-� Restricted access to the Koran linked with interrogation.

These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected. ..."

D. United Nations

"In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.

In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well."

"116. ... In [the 2004 CIA Report], the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that ' enhanced interrogation of al-Nashiri continued through 4 December 2002' and another, partially redacted, which stated that ' however, after being moved, al-Nashiri was thought to have been withholding information ', indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri's rendition - details which remain classified as 'Top Secret'.

...

"Secret detention centres and rendition flights

The Committee encourages the State party to continue its investigations into the allegations of its involvement in a programme of secret detention centres, and of the use of its airports and airspace by aeroplanes involved in 'extraordinary rendition', and to inform the Committee of their outcome. The Committee requests the State party to provide it with information about the outcome of any ongoing investigations regarding the case of Abd al-Rahim Hussayn Muhammad Al-Nashiri ."

X. TRANSCRIPTS OF WITNESS EVIDENCE PRODUCED BY THE GOVERNMENT

A. Transcript of witness X's statement made on 18 September 2013

"During the period 2003-2005, I was [REDACTED] and the duties attached to the post that I held included specific aspects concerning the security of civil aviation airports.

The [REDACTED], had partnerships with various similar institutions from other States, including equivalent structures in the United States of America. In the framework of these bilateral relations, civil aviation aircraft hired by the partner services on which their representatives travelled and landed at Bucharest Băneasa airport. My presence at the airport was aimed at ensuring protocol relations during processing as well as bilateral courtesy-setting according to diplomatic norms and international rules."

B. Transcript of testimony given by witness Y on 4 May 2015

"I have been informed that I will be heard as a witness concerning: the existence on the Romanian territory, after 2001, of some secret detention and interrogation centres of the United States of America's Central Intelligence Agency.

...

I declare the following:

I have been informed of the object of this criminal investigation, namely of the fact that a Saudi national, Abd Al Rahim Hussein Muhammad Al Nashiri, complained that he had allegedly been brought on the Romanian territory and held in illegal detention centre, administrated by officers of the Central Intelligence Agency (CIA) with help from the Romanian authorities.

It is for the first time that I have heard about such a criminal complaint by this citizen against the Romanian State. As a [REDACTED], I had never been asked by the authorities of the United States of America to allow, to approve, or to facilitate the hosting on the national territory of a location aimed at serving as a detention and interrogation centre of individual suspected of participating in, initiating or organising terrorist acts directed against the USA or its allies.

I do remember that, in the aftermath of the terrorist attacks of 11 September 2001 in the USA, myself and other officials of the Romanian State, at that time, went to the USA Embassy in Bucharest and we expressed our grief for what had happened and condolences for the loss of human lives; in the course of the same year, I visited UN headquarters, and on that occasion, I also visited the so-called 'Ground Zero'. I do not remember any express request addressed to me, to the [REDACTED], to the Head of the [REDACTED], to the Head of [REDACTED], nor the Ministry [REDACTED], to intensify the cooperation with the American partners from the intelligence services in the sense of facilitating [the creation] of detention centres on the territory of Romania.

I must say that I consider to be an invention this accusation according to which Romania hosted CIA detention centres on its territory and also being a denigration against the Romanian State, because in the [REDACTED] meetings such request from the Americans had never been discussed. If such centres had existed, I would certainly have known about their existence on the national territory, for as long as I was [REDACTED]. Therefore, I restate that [REDACTED] never received such requests from the USA's then Presidents, George Bush Jr. and Bill Clinton, nor from the three US ambassadors to Bucharest, during [REDACTED] and the impugned period [REDACTED].

Concerning my statement [REDACTED], I state that I did not maintain in that [REDACTED] that Romania had hosted CIA detention centres, but I only referred to the overflight permission ( drept de survol ) to [and from] the Mihail Kogălniceanu airport of Constanţa for the US military aircraft, in the context of Middle East operations, in which we cooperated (troops and equipment transport or others).

In the context of Romania's strategic objective of integration into the North Atlantic Alliance and into the European Union, the exchange of information and the cooperation between the national intelligence services and their American counterparts was done in a natural way, as a necessity. In this context, it is possible that CIA offices were run on the national territory, but I cannot with certainty state it, nor deny it, because I never personally gave such authorisation. I see no reason for the Americans to request the setting-up of such facilities on Romanian territory.

I wish to state that the initiative of [REDACTED] was not mine; it was the initiative of that [REDACTED] citizen that [REDACTED] asked me to have a discussion on the general subject of the 25th anniversary of the Revolution; at least, it was that which I was expecting, but it was never mentioned as such to me. I did not expect to be questioned on the issue of the supposed existence of the CIA prisons in Romania.

I certainly consider that the heads of the main [REDACTED] services would have consulted [REDACTED], should we have been asked to approve such detention facilities on the Romanian territory, also given the fact that both of them, [REDACTED] were members of the [REDACTED].

I heard about the statements publicly made by [REDACTED], and I intend to have a discussion with him, to clarify things on this issue, but because he had gone on holiday, I could not get in touch with him until now.

I have no other additional statements to make with regard to the object of this case.

..."

C. Transcript of witness Z's statement made on 17 September 2013

"I, the undersigned, [Z] ..., declare the following:

Between December 2000 and March 2004 I was the [REDACTED]. In this capacity I was appointed by the [REDACTED] to participate in the negotiations for the accession of Romania to NATO. From [REDACTED] 2004, I held the office of [REDACTED].

In this capacity, I had several meetings following which the first steps were taken towards setting up the military and intelligence agreements in order to fulfil the accession criteria. This was the co-called pre-accession phase, launched after the Prague meeting of 2 November 2002 during which the NATO Member States had decided that Romania was one of the next candidates for accession to NATO.

In this wide negotiation process, I was designated to prepare and negotiate those documents aimed at making Romania ready for its accession to the system, by adopting those necessary operative agreements that had to be effective by the time Romania was declared a NATO member. Concretely, I/we addressed various issues concerning the pre-accession, in the area of defence and intelligence cooperation.

Among those discussions, some developments or agreements took place in relation to the American flights to be operated by the CIA which had permission to fly over and land on Romanian territory. It was one of the steps that Romania had to take in order to become a NATO member and it meant fulfilling one of the conditions imposed on all partners of NATO members. From about 2003 onwards, several contacts had taken place in that direction and they resulted in concrete agreements that made possible the operation of the special American flights on Romanian territory, in different conditions from those provided for by international customs. It should be understood that those flights had a special character and they were not under an obligation to obey the usual rules imposed on civil flights.

I state that according to the information I had at that time, such practice of [special] flights was current and particular to all NATO Member States.

Concerning the issue of some locations that were to be provided for exclusive use by our American partners, I state that I/we insisted, and it was agreed, that in all those locations the Romanian State should have no participation and all activities were to be undertaken exclusively by the American partners under their exclusive responsibility. This way of doing it was the natural outcome of complying with the condition of attitude between allies. All the discussions in which I participated only concerned the status of the [REDACTED].

I have no knowledge about any detention centre or prisoners taken and located on Romanian territory or about any special treatment applied to such prisoners.

I only heard about this issue, and especially about prisoners taken on Romanian territory and detained here, from the press, when the international scandal exploded. I considered that those scandals were aimed at discrediting Romania's accession to NATO and its capacity as a NATO member and as an ally of the United States.

I appreciate that by continuing those scandals someone mostly wants to generate disputes at a high political level in the Eastern European Countries that were accepted during the last NATO accession wave.

[signature] [REDACTED]"

D. Transcript of testimony given by witness Z on 18 June 2015

"I have been informed that I will be heard as a witness concerning: the existence on Romanian territory, after 2001, of some secret detention and interrogation centres of the United States of America's Central Intelligence Agency. ...

I declare the following:

I have been informed of the object of this criminal investigation, namely of the fact that a Saudi national, Abd Al Rahid Husseyn Mohammad Al Nashiri, complained to the Romanian judicial authorities about the fact that he, as well as other individuals suspected of being members of a terrorist organisation, had been brought to Romanian territory and held in illegal detention facilities, administered by officers of the Central Intelligence Agency (CIA) and subjected to physical and psychological torture in order for them to obtain information concerning terrorist organisations.

I do not know anything about the facts this complaint refers to and, as can be easily observed, it seems that the Saudi national himself does not know any factual elements that might substantiate his complaint.

I only heard about him when his complaint became a matter of public knowledge.

By virtue of the public offices of [REDACTED] that I previously held, among which the public office of [REDACTED] and that of [REDACTED], and that of [REDACTED], I firmly maintain that the allegations publicly spread concerning the supposed existence, on the territory of Romania, of illegal detention centres administered by the United States of America, through the CIA, centres in which several individuals suspected of being members of a terrorist organisation or of having committed terrorist acts have been held, are nothing but simple allegations or suppositions of some persons that have nothing to do with the realities of the Romanian State.

At the time of the terrorist attack of 11 September 2001 in New York, I held, as mentioned before, the office of [REDACTED]. On the day of the attack, the then [REDACTED], publicly expressed by means of an official statement the commitment of the Romanian authorities to support the USA in their fight against terrorism, by means that were to be subsequently established by common agreement, upon the request of US officials. Immediately after the terrorist attack, in the following 48 hours, [REDACTED] called for a meeting of the [REDACTED], which endorsed the official statement of the [REDACTED]; following which Parliament also approved the [REDACTED] document.

Immediately after those terrorist attacks, our contacts with the representatives of the US diplomatic mission in Romania and other Western diplomatic missions increased and the steps taken by Romania in order to become a NATO member were accelerated.

Consequently, in November 2002, at the Prague conference of the NATO Member States, taking into account the progress made, the Heads of State and Government of the NATO Member States invited Romania to join the Alliance.

It is true that US Government officials asked the Romanian authorities to offer some locations, on Romanian territory, to be used for actions of combating international terrorist threats, by the representatives of the CIA, on the same pattern as that used in the other NATO Member States. This discussion was one of principle, and finally one single location was offered, without specifying the nature of that location, whether it should have been an office or an office building or land for building some facilities, or some other form. It was understood, at that stage, in 2003, that it should be an office building in Bucharest.

The requested site was to be identified and made available by the [REDACTED].

I would make clear that I was directly in charge of these negotiations, having the coordinating role, while the person designated from the Ministry of [REDACTED], in charge of the discussions with the American partners, was the then [REDACTED].

As far as I know, [REDACTED] made available to the CIA, in Bucharest, one site which afterwards was converted into [REDACTED] in Romania; this is a method common to the relationships with other NATO Member States.

I maintain that I never publicly admitted that, in Romania, CIA illegal detention centres had existed, with the support of the Romanian governmental authorities, in which various persons had been illegally detained, during the US-initiated State detention programme.

I only stated that the Romanian authorities cooperated in the anti-terrorist war on an exchange of information basis with the American intelligence services, including the CIA, also by offering a site for the CIA activities.

I do not wish to comment on the information given by the mass-media in relation to the persons that were supposed to have been illegally detained on Romanian territory in CIA-run detention centres, the source of this information being the partially published US Senate Report on the detention and interrogation of terrorism suspects programme; I consider that it is the responsibility of the USA to clarify this issue, as long as I have no knowledge of such operations on Romanian territory and I do not know anyone in connection with such a matter.

The name of Abu Faraj Al-Libi, Hassan Gul, Janat Gul does not sound familiar to me, given the fact that, as stated before, I did not approve, I did not know and I was not informed of any operation for the transfer or detention of a foreign national by the CIA.

Concerning the public debate on the existence of CIA directly or indirectly controlled flights with a special destination on Romanian territory, I would like to say that such flights were operated also in German, English, Italian and other territories, and that they did not represent a Romanian particularity.

I have nothing else to state about the facts in this file. ..."

E. Transcripts of statements from other witnesses

"... I, the undersigned [A] [personal data], state that I work for the [REDACTED], as a [REDACTED].

From 2003 to 2005, I worked for the [REDACTED] at Bucharest Băneasa Airport, as [REDACTED]. As such, I worked mainly at the [REDACTED] and at other specific departments. In all the departments, my work was governed by the provisions of the [REDACTED] and by the working methodologies. For example, at [REDACTED], I worked in the booths placed on the entry or exit corridor, also I assisted the passengers at the boarding gate and I escorted them to the regular aircraft.

Being asked about the ... planes, I don't recall having heard about the mentioned aspects, namely about the disembarkation of clandestine passengers and, implicitly, I did not go to the planes referred to in the questions.

There were some cases when private aircraft, according to flight plans, parked in front of the protocol lounge, where we went, together with customs officials, for the checking of documents. There were cases when, together with a RAS employee, we went to the protocol lounge for the checking of the passengers' documents - various officials. I declare that I do not recall cases of disembarkation of clandestine passengers."

"... I, the undersigned [B], state as follows:

[REDACTED] founded [REDACTED] in 1994 with the purpose of providing handling services for the business aviation at Băneasa Airport. Together with the Airport, I promoted this type of traffic at Băneasa taking into consideration that there was hardly any traffic at the airport as the domestic Tarom flights had just moved to Otopeni. We provide handling services specific to business aviation, which means everything that is connected to the embarkation/disembarkation of passenger/cargo/mail aircraft.

For the business aviation there were some specific requests different from the regular commercial aviation, meaning that, usually, business flights' operators sent in advance a request for services which was confirmed by our operating agents.

At the specified time (2003-2005), [REDACTED] operating agents met the aircraft upon arrival and accompanied it upon departure together with the border guard and a customs official.

For the business aircraft, our operating agents accompanied the crew and undertook the embarkation/disembarkation of the passengers/luggage.

As for the transiting aircraft with American registrations, our personnel were joking about them saying that they were spies.

The majority of passengers on these aircraft were men.

Usually, our personnel servicing these aircraft did not enter the planes. Those responsible for the handling papers and for receiving the payment for the handling services and the airport taxes went to the aircraft and then, together with a member of the crew, came back to our office in the airport where the final handling sheet was drawn up and the payment was made. At the specified time, I was sometimes present at the airport making unannounced checks. As I did not have a uniform, I personally did not go to the aircraft.

In the airport I did not notice any illicit movements in relation to the embarkation/disembarkation of passengers unknown to us or of passengers that did not go through the normal process.

During the boom in private and commercial aviation, planes were parked according to their weight (the term 'the heavy ones' was used).

To the question whether it was possible for a passenger to be brought in outside the legal arrival process, I do not believe that such a thing is possible. The airport had a fixed and mobile security service.

I have not heard rumours about detainees being flown on the transiting aircraft with American registrations.

I indicate that I was asked to provide documents about the handling of these aircraft by a parliamentary commission and that I forwarded all kind of documents, but I did not testify.

Also, I would make mention of the fact that, unlike in the case of commercial aviation where the cargo is documented (by way of Pax Manifest, General Declaration, Cargo Manifest), for business aviation there are generally no documents drawn up concerning the identity of the cargo."

"... I, the undersigned [C] [personal data], state as follows:

From 2003 to 2005, I was employed by the Romanian Airport Services as [REDACTED]. It was a [REDACTED] job and I was responsible for the documents necessary for take-off without going to the aircraft because I do not have a driving licence. Access to the aircraft is possible only by way of a vehicle.

After the landing of an aircraft, the practice began with the movement of the Border Police, the custom agents and the airport security agents and of the RAS operating agent.

With the crew's approval, border police entered the aircraft and took the passports and the custom agents were present for the checking of the documents, if necessary. If the aircraft was inspected, the pilots were accompanied by the operating agent by car to the firm's office. If need be, hotel reservations were made or, if they already had reservations, the agent accompanied them to the hotel without passing through the office.

For vehicles from outside the airport, access was permitted only after being checked by the security agents. Also, if such a vehicle had to enter the airport premises, access was allowed only accompanied by an agent of the airport security department.

I have no knowledge of any aircraft or transport of detainees undertaken by the American authorities on Romanian territory."

"I, the undersigned [D] [personal data], state as follows: From 2003 to 2005 I worked at Bucharest Băneasa International Airport in the [REDACTED] as [REDACTED]. In this position, I was responsible for the access to airport premises of authorised persons and vehicles.

During that time, several private aircraft landed, but they did not come within my responsibility as I was working at a fixed point, without patrolling, and as such I had no contact with incoming/outgoing aircraft or passengers. I declare that during that time there was no patrol service in the proximity of the aircraft, the airport being guarded by the gendarmes and afterwards by a security firm.

I had no knowledge about the fact that these private flights were used for the transport in/out of Romania of detainees, finding out about these things many years later in the press. ..."

"... I, the undersigned [E] [personal data], state as follows:

From 2003 to 2005, I was [REDACTED] in the airport [REDACTED] department at International Băneasa Aurel Vlaicu Airport and, at present, I am [REDACTED].

During that time, I had personal knowledge of some private flights that landed at night time at Bucharest-Băneasa airport as being flights with a special status.

These flights were parked on the airport platform for about 10-15 minutes, after which they took off.

I personally have knowledge of 3-4 such flights. The only person approaching these flights was [REDACTED] [X], who went to the aircraft in the SRI working van-type vehicle. Other persons on duty were informed early on about the arrival of these flights and did not have access to these planes.

I do not know exactly whether [X] entered the planes or just stayed by them. I did not see anyone embarking onto or disembarking from these aircraft.

The head of the security department at that time was [REDACTED], and the head of the control tower and air traffic navigation was [REDACTED]. ... ."

"... I, the undersigned E [personal data], state as follows:

From 2003 to 2005, I was [REDACTED] in the airport [REDACTED] department at International Băneasa Aurel Vlaicu Airport and, at present, I am [REDACTED].

During that time, I had personal knowledge of some private flights that landed at night time on Băneasa airport as being flights with a special status."

"... I, the undersigned [F] [personal data], state as follows:

From October 2001 to January 2007, I was employed by [REDACTED] (Băneasa Airport) as [REDACTED].

In this capacity, according to my job description, I was responsible for the access control of persons, in the airport area, access control of vehicles in the movement area and access control to the [REDACTED].

With regard to the access of vehicles on the airport premises, the access of vehicles had to be authorised, all the vehicles and also their drivers were registered, had a special tag and an access permit, so that access was permitted only to the person designated to drive the vehicle, on the basis of a special permit of access to the airport premises, the identification tag where the access areas were indicated, the driving licence and a personal identification document, and for the vehicle on the basis of the vehicle's identification tag and the access permit for the movement area.

After the checking of the vehicle, it was necessary to obtain the authorisation of the deputy commander of the airport for access by the vehicle. After the deputy commander had given his approval, the vehicle was noted in a table, mentioning the time of entry, the number of the access permit, the identification number, and the destination within the airport's premises.

After the access of the vehicles or of the vehicle a second check was operated by the SRI.

It follows that the access of the vehicles, as well as the access of the persons who were accompanied to the access areas of the airport for identification control, etc., was carried out according to the strict rules of the airport security."

"... I, the undersigned [G] [personal data], state as follows: From 2003 to 2005 I worked at Bucharest Băneasa Airport in the [REDACTED] Department as [REDACTED], receiving knowledge relating to the flights with the 'N' call sign, that were announced as special flights to which we were not requested.

Generally, these were night flights that arrived for refuelling, and to this effect the operator handling the refuelling would go to the plane. If there was a request for a handling agent, somebody from RAS would go. ..."

"... I, the undersigned [H] [personal data], state the following:

Starting in 2003 and up to February 2004 I worked for the [REDACTED] of Băneasa International Airport as [REDACTED]. I handled the security checks of foreign and Romanian citizens entering/exiting Romania and who were in transit across the Romanian border, in compliance with the orders given by the shift chief and the flight plan established for each workday.

I processed according to the flight plan all the flights with the 'N' call sign, without them having a stop in Bucharest. All the passengers from the flights were processed pursuant to the law.

I did not see amongst the passengers of the planes individuals with special status, wanted at national or international level. ..."

"... I, the undersigned [I] [personal data], state the following:

From 2003 to 2005 I worked for the Romanian Airport Services as [REDACTED]. I handled the servicing of planes that landed at or departed from Bucharest Airport. As part of my job assignment I also handled refuelling, catering, and receiving payments for handling services.

It is worth mentioning that a file exists with all the flight details for all the planes that landed or departed. If there is such a file, it means that that flight landed at or departed from Băneasa Airport.

Regarding the American flights with the 'N' call sign, as in the case of planes flying under other flags, my duty was to provide refuelling, crew transport from the airport to the hotel, catering services, weather reports.

Usually, when a technical stop was involved, I would go to the plane alone, accompanied only by the driver of the refuelling vehicle.

I declare that I never saw a detainee - passenger, especially of Arab origin, being boarded or disembarked onto/from a plane, American or otherwise. ..."

"... I, the undersigned [J] [personal data], state the following:

From 2003 to 2005 I worked as [REDACTED] at [REDACTED] handling the checking of documents needed to cross the State border, in both directions. Regarding the private flights that landed in or departed from Romania, these were processed at the Protocol Lounge of the airport; the individuals were taken from the plane by an RAS car and were brought to the reception area and processed according to the work procedure.

I also declare that there was no need for an operational team to go to the plane, as the passengers were brought to the reception area. Likewise it is not possible for the passengers to be taken into unauthorised vehicles and leave the airport premises without passing through the specially designated checkpoints.

Personally, I did not see any individual who was boarded onto or disembarked from the American planes, other than the crew and the passengers that we checked. ..."

"... I, the undersigned [K] [personal data], state the following:

From 2003 to 2005 I was employed at [REDACTED] and I handled the services being provided by the airport to planes that were arriving at or departing from Băneasa International Airport. The services included refuelling the planes, cleaning, handling crew transfer to and from the airport. In practice, communication was established with the crew who made the request for services and then we organised the teams, according to the request. Regarding the flights under the American flag, these were flights with a technical stop at Băneasa Airport (refuelling). I did not see any passengers disembarking from or boarding these planes. Also, in order for a car to have access to the parking platform outside the airport, they would require an authorisation issued by the airport administration. ..."

"... I, the undersigned [L] [personal data], state the following:

-� Between 2003 and 2005 I was an employee of Băneasa Airport [REDACTED].

-� As part of my job description, I handled the access of employees and vehicles that entered the secure area of the airport.

-� Regarding the private flights under the US flag, I declare that nothing suspicious caught my attention.

-� I did not see any individuals that might have detainee status who were handcuffed and who were boarded onto or disembarked from the private flights that landed at the airport. ..."

"... I, the undersigned [M] [personal data], state the following:

Between 2003 and 2005 I worked as [REDACTED] for Băneasa Airport [REDACTED] and I handled security inside the airport at personnel access and vehicle and personnel checkpoints; it was not part of my job description [illegible] activities with the planes that entered or exited the platform.

We were [not] informed about the special flights not even by the shift manager. They were handled by the deputy commander, the border police, transport police, customs and RIS. ..."

"... I, the undersigned [N] [personal data], state the following:

From 2003 to 2005 I worked for the Ministry of [REDACTED] at Băneasa Airport, as [REDACTED].

I declare that in 2006 I worked at REDACTED] and until that date I had processed documents alongside [petty -�sic!] officers with more work experience as I had arrived in Bucharest from the [REDACTED].

I have knowledge of private planes landing at Băneasa Airport but I did not note anything out of the ordinary when they landed.

When private planes landed, RAS employees would go by bus, pick up the pilots and bring them to the Border for travel documents processing."

"... I, the undersigned [O] [personal data], state the following:

Between 2003 and 2005 I worked for [REDACTED] as [REDACTED]; as part of my job I provided services to planes that landed at Băneasa International Airport, private and charter flights.

During that time, several private flights with US-registered aircraft were operated. These flights went according to plan, carrying business people. One evening, after dawn, a plane landed that was treated differently, as officials from the airport and from the Counter-terrorism squad asked us to stay in the office and not go out to the plane that was about to land. We complied with the request.

I cannot recall the date of the flight or the call sign.

I never saw a similar case in my time working for [REDACTED].

At that time I did not know the nature of those flights, and I also did not know whether similar flights were operated at Băneasa Airport.

After being asked, I can confirm that on the airport's platform vehicles cannot gain access without prior approval/permission. ..."

"... I, the undersigned [P] [personal data], state the following:

Between 2003 and 2005 I worked at [ Government Editor's note : Bucharest - Băneasa International Airport - Aurel Vlaicu] in [REDACTED].

I know that special flights were operated at night and in the time frame noted above I saw a plane without a call sign that was positioned in the middle lane of AIBB - AU platform, on the north side.

I saw the following activity going on at the side of the plane:

- Activities carried out by RAS handling operators;

- A passenger disembarking accompanied by a dog, pit bull or Amstaff, and they walked around the plane and after approximately 10 minutes they boarded the plane.

I note that the procedure for transporting pets was violated. Pets can be transported in cages that are stored in the plane's hold, in the plane only ... can travel.

The plane parked on the AIBB - AV was a GOLF that did not require a mobile stairway, the plane being equipped with an airstair on the plane's door.

The individual who disembarked with the dog was dressed in dark overalls with military boots. ..."

"... I, the undersigned [Q] [personal data], state the following:

Between 2003-2005 I worked for [REDACTED] as [REDACTED], being subsequently promoted to [REDACTED].

In this position, I serviced flights that operated at Băneasa Airport, namely check-in procedures, boarding/disembarking, luggage transport and passenger transport from the plane to the terminal and vice-versa and also providing the services requested by the crew (cesspool emptying, drinking water, catering, etc.).

Several flights under the US flag arrived during this time and there were no other special services provided that were different from those provided to any other flight that arrived at Bucharest Băneasa Airport.

I do not have any knowledge of any special activity that was provided for these flights. ..."

"... I am [REDACTED], from the founding of this institution in [REDACTED] 2002 to the present day. The offices of the institution are found in Bucharest, [REDACTED]. From the setting up of the institution to the present day we have always had the same location (with an adjacent location, similar to an interior garden, plus 1 meter of ground all around). Since the time this building was assigned to its present purpose, there have been no major modifications, such as the building of annexes, of other buildings, interior redecoration, etc. From the analysis of the annual budgetary execution of the institution, one can observe that there were no major funds allocated that may be suspected of being used for the setting up of spaces that could be used as secret detention centres, as some media outlets absurdly assert.

In other words, since the founding of the institution, which was already mentioned, to the present, our headquarters have never been used as a detention centre for persons suspected of terrorist acts by the CIA or by other governmental institutions, national or foreign, and no activities in relation to this subject have taken place.

By its nature, the building [where the ORNISS is located] cannot be used for such a purpose.

I am aware of the information circulating in the public space, national or international, about the fact that the [ORNISS] building has been used as a location for the detention of persons suspected of terrorism by the CIA and I strongly affirm that these are merely fallacies.

I declare that the institution [REDACTED], including its location, is regularly subject to checks by the competent institutions within NATO and the European Union. During these checks, no indications regarding the involvement of the [ORNISS] in the detention of persons suspected of terrorism, from the setting up of the institution and afterwards, have been identified.

The activity of the institution is governed by the [REDACTED]. Anyone [REDACTED] will notice that the [ORNISS] is not a part of the national system of preventing and countering terrorism or of the national system of public order and national security even though, due to the specific nature of its activity, it collaborates with institutions involved in the said systems.

Neither personally, nor institutionally, do I/we have relevant information about this subject (the prevention and fight against terrorism). I declare that, after the September 11 2001 attacks, we were never asked to participate in the activities meant to establish the type of help that Romania was to offer the United States of America to help with the prevention and fight against terrorism. ..."

XI. OTHER DOCUMENTARY EVIDENCE BEFORE THE COURT

A. RCAA letter of 29 July 2009

"The Romanian Civil Aeronautical Authority located in ... represented by ... in compliance with the stipulations of the court decision no. 3580 of 15 December 2008 pronounced by Bucharest District Court, we hereby present in the annex to this document the answers to your inquiries included in address no. 261/07 .08.2008.

Annex to the address no. 19602 of 29.07.2009

General specification:

The data provided below do not indicate with certainty that these flights were carried out. According to the regulations in effect and applicable on the respective dates, AACR does not have any document that would identify the actual performance of these flights. The information represents planned intentions that AACR was notified about.

...

01.01.2003 - 31.12.2003

N313P - 2 flights

N478GS - 1 flight

N379P - 1 flight

N85VM - we do not have any records of the requested information

N227SV - we do not have any records of the requested information

N2189M - 2 flights

01.01.2004 - 31.12.2004

N313P - 2 flights

N478GS - we do not have any records of the requested information

N379P - we do not have any records of the requested information

N85VM - we do not have any records of the requested information

N227SV - we do not have any records of the requested information

N2189M - we do not have any records of the requested information

Answer for point 3:

01.01.2003 - 31.12.2003

N313P - 2 flights

Airport(s) in Romania where it landed: Băneasa

The date of landing and the date on take-off: 23.09.2003; we do not hold any recordings of the date when it took off

Flight purpose: private non-commercial

Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:

- in Romania, it is not mandatory to report the number of people (crew and passengers)

- Crew -�

- Passengers: 9 (according to the date provided by the applicant).

Airport(s) in Romania where it landed: Băneasa

The date of landing and the date of take-off: 22.09.2003; we do not hold any recordings of the date when it took off

Flight purpose: private non-commercial

Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:

- in Romania, it is not mandatory to report the number of people (crew and passengers)

- Crew -�

- Passengers: 9 (according to the date provided by the applicant)

...

01.01.2004 - 31.12.2004

N313P - 2 flights

Flight itinerary (departure sites, stop sites, destination place): we do not hold any records of the departure site - Timişoara

Airport(s) in Romania where it landed: Timişoara

The date of landing and the date on take-off: 25.01.2004; we do not hold any recordings of the date when it took off

Flight purpose: maintenance refuelling stop

Number of people present on board of the aircraft at landing and the number of people present on board of the aircraft at take-off:

- Crew - we do not hold any records of the requested information

- Passengers - we do not hold any records of

..."

B. List of twenty-one "suspicious flights" produced by the Government

C. Documents concerning the N313P rendition mission on 16 -� 28 January 2004 produced by Senator Marty and Mr J.G.S. in the course of the PowerPoint presentation

D. The 2010 Findings of the Lithuanian Seimas Committee on National Security and Defence (extracts)

"In the course of the investigation, the Committee established that three occasions of crossing of Lithuania's airspace were omitted in the mentioned reply to Dick Marty, ..., and in the data provided by the state enterprise Oro navigacija :

...

(3) 'Boeing 737' no N787WH, landed in Vilnius on 6 October 2005;

... When comparing the submitted data with the material of the Temporary Committee of the European Parliament, it was established that:

Two CIA-related aircraft landed at Vilnius International Airport:

...

(2) 'Boeing 737', registration no N787WH (6 October 2005, route Antalya-Tallinn-Vilnius-Oslo. A letter of Vilnius International Airport dated 7 December 2009 states that this aircraft arrived from Tirana at 4.54 am and departed at 5.59 am. According to the documents of the SBGS [the State Border Guard Service], this aircraft arrived from Antalya and departed for Oslo).

...

During the investigation, three occasions were established on which, according to the testimony of the SSD [the State Security Department] officers, they received the aircraft and escorted what was brought by them with the knowledge of the heads of the SSD:

...

(2) 'Boeing 737', registration No. N787WH, which landed in Vilnius on 6 October 2005. According to the data submitted by the SBGS, its officers were prevented from inspecting the aircraft; therefore, it is impossible to establish whether any passengers were on board the aircraft. No customs inspection of the aircraft was carried out;

..."

E. Mr Hammarberg's affidavit of 17 April 2013

Affidavit of Thomas Hammarberg

"1. I, Thomas Hammarberg, served as Council of Europe's Commissioner for Human Rights during 2006-2012. I now work on specific human rights projects for the United Nations and the European Union.

Tbilisi, 17 April 2013

Signed Thomas Hammarberg"

F. Dossier (Memorandum) of 30 March 2012 provided by Mr Hammarberg to the Romanian Prosecutor General (extracts)

"Introduction

"6. The opening of the CIA Base codenamed 'Bright Light', and the start of detention operations at the CIA Black Site in Romania, was marked by a flight into Bucharest Băneasa Airport (LRBS) on the night of 22 September 2003. Flight records show that the Boeing 737 aircraft, registered with the FAA as N313P, arrived at Băneasa at 21h31m GMT that night in the course of a four-day flight 'circuit', during which it landed in and departed from a total of six different foreign territories, as well as the US naval installation at Guantánamo Bay, Cuba. ...

"11. False flight plans in respect of Romania - customarily filed on behalf of the CIA by its well-known aviation services contractor Jeppesen International Trip Planning ('Jeppesen') - consistently featured an airport of departure (ADEP) and / or an airport of destination (ADES) that the aircraft never actually intended to visit. The CIA's deliberate trend, which it began on 22 September 2003 and continued for more than two years, was to avoid listing Bucharest (LRBS) as its express destination. If Bucharest was mentioned at all in these flight plans, then it was usually only as an alternate, or back-up airport, on a route involving Constanţa (LRCK) or Timișoara (LRTR), for example. ...

"Based on having unpicked the practice of 'dummy' flight planning and, in respect of several key landings of CIA rendition aircraft, having obtained original documentary records from agencies inside Romania, we have been able to compile a substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all of which bore the character of 'detainee drop-offs'. Beginning with the landing of N313P that marked the opening of the CIA Black Site in Romania, the most significant of these flights can be summarised as follows. ..."

"i. N313P landing at 21h31m GMT on the night of 22 September 2003, assessed to have been bringing in at least two CIA detainees from Szymany. POLAND, 'dummy' flight plans filed featuring Constanţa (LRCK);

ii. N313P landing at 23h51m GMT on the night of 25 January 2004 (assessed to have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, 'dummy' flight plans filed featuring Timisoara (LRTR);

iii. N85VM landing at 23h14m GMT on the night of 26 January 2004 (assessed to have been bringing in CIA detainee(s) from Amman. JORDAN, 'dummy' flight plans filed featuring Constanţa (LRCK);

iv. N85VM landing at 21h47m GMT on the night of 12 April 2004 (assessed to have been bringing in CIA detainee(s) from US Naval Base, GUANTÁNAMO BAY, via a technical stopover in Tenerife, 'dummy' flight plans filed featuring Constanţa (LRCK);

v. N288KA landing at 21h24m GMT on the night of 31 July 2004 (assessed to have been bringing in CIA detainee(s) from Kabul, AFGHANISTAN and from Amman, JORDAN, 'dummy' flight plans filed featuring an unspecified destination;

vi. N787WH landing at 09h45m GMT on 18 February 2005 (assessed to have been bringing in CIA detainee(s) from Rabat, MOROCCO, 'dummy' flight plans filed featuring Constanţa (LRCK);

vii. N308AB landing at circa 21h00 GMT on 26 May 2005 (assessed to have been bringing in CIA detainee(s) from Amman, JORDAN, 'dummy flight plans filed featuring an unspecified destination);

viii. N860JB landing at 19h34m GMT on 21 August 2005 (assessed to have been bringing in CIA detainee(s) from Kabul. AFGHANISTAN, 'dummy' flight plans filed featuring Constanţa (LRCK)."

"15. Our investigations into the CIA's Black Sites in Europe have enabled us to understand the underlying transience of the CIA's individual detention facilities. Simply put, we have found that each CIA Black Site had a unique individual life-cycle.

The CoE Marty Inquiry found that 'Romania was developed into a site to which more detainees were transferred only as the HVD Program expanded', and that 'the Romanian Black Site was incorporated into the Program in 2003, attained its greatest significance in 2004. and operated [at least] until the second half of 2005.'

The Associated Press has reported that 'The Romanian and Lithuanian sites were eventually closed in the first half of 2006 before CIA Director Porter Goss left the job. Some of the detainees were taken to Kabul, where the CIA could legally hold them before they were sent to Guantánamo. Others were sent back to their native countries. All the prisons were closed by May 2006, and the CIA's detention and interrogation program ended m 2009'; and

ABC News reported on December 5, 2005 that 'two CIA secret prisons operat[ed] in Eastern Europe until [November 2005]' - presumed to have been in Romania and one other country - and that 'the United States scrambled to get all the [detained al-Qaeda] suspects off European soil before Secretary of State Condoleezza Rice arrived there today."

"20. As a result of the aforementioned AP/ARD collaboration, the exact whereabouts, capacity and layout of the CIA Black Site in Romania have been established for the first time. The prison facility was operated in an underground basement that forms part of the building complex housing the National Registry Office for Classified Information (ORNISS), at No 4 Strada Mures, Sector 1, Bucharest.

"23. Recent reporting appears to offer more information than was previously known about the proprietary character of the building(s) in which the CIA Black Site in Romania was housed, and the means by which the premises was appropriated and renovated. There is a precedent in this regard the equivalent CIA Black Site in Poland was a constituent part of an existing state facility that was 'loaned' to the CIA - situated inside the Polish military intelligence base at Stare Kiejkuty.

-� The New York Times has reported that Kyle 'Dusty' Foggo, the then serving Chief of CIA Logistics in Europe (stationed in Frankfurt), agreed in March 2003 to an assignment to 'oversee construction' of CIA Black Sites in Romania and two other locations.

-� 'that the most important documents at issue have the character of 'bilaterals', derived from the application of the wider NATO framework to US-Romanian counterterrorism cooperation m the course of the 'war on terror' ."

"33. Notwithstanding the individual interrogation regimes designed specifically for individual detainees, the CIA reported to the US Department of Justice in 2005 that a set of six Standard Conditions of CIA Detention were being applied routinely to detainees held in the CIA's detention facilities - including at the CIA Black Site in Romania. These conditions included forms of treatment that might in themselves have ramifications for compliance with the ECHR, including the use of blindfolding or hooding, forced shaving of hair, indefinite periods of incommunicado solitary confinement, continuous white noise, continuous illumination using powerful light bulbs, and continuous use of leg shackles (in some instances for 24 hours a day)."

" Abd al-Rahim Al-Nashiri

-� Arrested: October 2002 Dubai, UAE

-� Previously held: Dubai, Afghanistan, Thailand, Poland, Morocco, Guantánamo Bay

-�Subjected in Poland to several 'unauthorised techniques', including incidents described by the CIA Inspector General as the 'most significant abuses' in the CIA Program

Transferred to CIA Black Site in ROMANIA 12 April 2004 N85VM flight Guantánamo Bay (MUGM) - Bucharest (LRBS)

-�Debriefing subsided considerably beyond February 2004 and is not known to have been subjected to EITs in Romania."

G. Mr Hammarberg's replies to questions put to him in writing by the Court and the parties

"In your

(a) 'Human Rights Comments - Europeans must account for their complicity in CIA secret detention and torture', published on 5 September 2011;

(b) Memorandum, entitled 'Advancing accountability in respect of the CIA Black Site in Romania' ('the Memorandum') of 30 March 2012; and

(c) affidavit ('the Affidavit') of 17 April 2013, produced by Mr Al Nashiri,

you refer, among other things, to Romania's complicity in CIA secret detention, the operation of the CIA detention facility in Bucharest from 22 September 2003 to an unspecified date in the second half of 2005, presumably November 2005 and Mr Al Nashiri's rendition to Romania on 12 April 2004."

Question 1:

"On the basis of evidence known to you and, in particular, collected in 2006-2012, i.e. during your term as the Council of Europe's Commissioner for Human Rights, can it be said that at the material time (22 September 2003- unspecified date in the second half of 2005, presumably November 2005) Romania knew, or ought to have known of the operation of the CIA rendition programme on its territory and was aware of the existence of the CIA detention facility in Bucharest, designed for interrogation of terrorist-suspects in CIA custody?"

Answer:

"As I stated in my Memorandum of 30 March 2012, it was my view in 2012 that sufficient evidence had been amassed to allow me to consider the existence of a CIA Black Site in Romania as a proven fact, and to affirm that serious human rights abuses took place there (§ 4 of the Memorandum). These operations were, of course, conducted under extreme secrecy. In the case of Poland and Lithuania, it has been established that only a very few high level decision makers were at all informed and had given their confidential consent to the establishment of the interrogation centres. The operation of the centres was totally in hands of CIA officials. It is likely that the situation in Romania was similar.

The point I sought to make, at the time of transmitting the Memorandum to the Romanian Prosecutor, was that there was enough prima facie evidence to make it necessary to start a thorough investigation. My aim was to demonstrate the compelling need for a judicial investigation and to assist such procedure through sharing our information."

"In the Memorandum you stated that Mr Al Nashiri was transferred to the 'black site' in Romania on 12 April 2004 on the CIA rendition plane N85VM.

On what kind of evidence was that finding based and how was it possible to establish that this particular individual was transferred to Romania on this specific date?"

Answer:

"The assertion that Mr Al Nashiri was transferred to the 'Black Site' in Romania on 12 April 2004 on the CIA rendition plane N85VM was made as a result of original investigation work and analysis which was carried out by Mr. J.G.S, an adviser in my Office from 2010 - 2012 (see the case of Al-Nashiri v Poland , application no. 28761/11 , 24 July, § 324). The assertion was based on a number of different sources which were cross-referenced and not one piece of evidence in isolation. These sources included: official US Government documents describing CIA operations; flight records and aeronautical data amassed from diverse entities across the global aviation sector (current and former employees of national civil aviation authorities, airports, pilots, private charter companies, US government contractors and sub-contractors, and international organisations such as Eurocontrol); and excerpts of interviews with former CIA detainees carried out by delegates of the International Committee of the Red Cross. Media reports produced by investigative journalists, in particular by the Associated Press and German public television, ARD Panorama, have also enabled specific elements of the CIA's operations in Romania to be verified and corroborated. The work and findings of other Council of Europe bodies in the same period, notably the inquiries led by the Parliamentary Assembly and its former Rapporteur, Senator Dick Marty, as reflected in his reports published in 2006 and 2007 also informed my work, as well as original documentary records from agencies inside Romania which assisted enabled me to compile a substantial list of disguised rendition flights into Bucharest.

From the combination of these sources, we managed to draw the conclusion that the CIA opened an interrogation centre in Bucharest in September 2003 and that Mr. Al Nashiri was transferred there on 12 April 2004."

"Why was no date, even approximate, of Mr Al Nashiri's transfer from Romania, indicated in the Memorandum?"

Answer:

"The reason why no date, even approximate of Mr Al Nashiri's transfer from Romania was indicated in the Memorandum was that our research did not manage to establish the precise dates for the closure of the centre in Bucharest nor for Mr. Al Nashiri's departure from there."

" In the Affidavit (§§ 4-5) you mentioned that - on several occasions but to no avail - you had raised with the Romanian diplomats the issue of the CIA black sites in Romania and you had informed them that materials in your possession had showed that the CIA had kept suspects detained in a location in Bucharest for the purpose of interrogation.

Could you specify, at least approximate, dates on which you raised that issue before delivering your dossier to the Romanian diplomatic mission and what was the authorities' response?"

Answer:

"I raised the issues reflected in the Memorandum in meetings with the Romanian Ambassador (Permanent Representative) to the Council of Europe on 5 September 2011, 30 January 2012 and 29 March 2012. These were confidential meetings held between myself as Commissioner for Human Rights and the Ambassador, as representative of the Romanian authorities. I do not feel in a position to disclose the precise contents of those discussions, save to underline that during the meeting on 29 March 2012, I handed over my Memorandum, which was addressed to the Prosecutor General in Bucharest. The Memorandum was then published a number of months later on 18 December 2012."

"In the Affidavit (§§ 7-9) you mentioned that you had received no 'formal response' to the dossier that you had prepared for the Romanian Prosecutor General.

Did you receive any other response, even informal? Did you have an opportunity to discuss the question of instituting an investigation with the Romanian authorities at any further stage? If so, how did the authorities react to the information of the CIA 'black sites' on their territory which they had received from you?"

Answer:

"I received no response from the Romanian authorities, not even an informal one."

"Having regard to the fact that the change of flight plans after being submitted represents a unilateral action of the flight operator and to the fact that the route changes are reflected in the documents issued by the Romanian authorities, which is the evidence that led to the conclusion that a simple change of flight plans (allowed by the relevant domestic and international regulations such as the IFPS Users Manual) represented a cover-up with the complicity of the Romanian authorities?"

Question 2:

"Having regard to the IFPS Users Manual provisions concerning the STS/STATE indicator, which were the domestic or international legislation or the relevant elements of fact that led to the conclusion that the flights with the STS/STATE indicator analysed in the Memorandum that landed on Romanian territory benefited from certain privileges and which were these privileges?"

Answers to questions 1 and 2:

"The changing of flight routes was systematic with the obvious purpose of protecting the secrecy of the operations. In our investigation work we were able to unpick the practice of such 'dummy' flight planning. In respect of several key landings of the CIA rendition aircraft we did obtain original documentary records from agencies inside Romania. We were also able to compile a substantial, albeit non-exhaustive list of disguised rendition flights into Bucharest, all of which bore the character of 'detainee drop-offs'.

Though the operations were conducted under extreme secrecy, it is obvious that the CIA plane could not land with its cargo and depart without agreement from high-level Romanian decision makers. This is further underlined by the fact that the flights had been given the very important 'special status' - STS/STATE - a designation that is supposed to be used only in strictly limited circumstances: in attributing this designation, the CIA company claimed an official status for the plane, N313P, as a diplomatic or state aircraft, only one notch below the aircraft that carries Heads of State [STS/HEAD]."

"Having regard to the fact that the Memorandum quotes the 2007 Marty report as a reliable source for many of its conclusions, which were the reasons that determined the author to dismiss Senator's Marty supposition that a secret detention site was located in the area of the Mihail Kogălniceanu Airport (§§ 222-226 of the 2007 Marty Report)? What led the author of the 2012 Memorandum to conclude that the information provided by Senator's Marty sources on this subject is less believable than the information provided on other aspects cited in the Memorandum?"

Question 4:

"Having regard to the fact that certain reports put forward several dates as the possible date of entry of the applicant on Romanian territory, which are the elements that justify the Memorandum's conclusion that the applicant entered Romania on the 12th of April 2004?"

Answers to questions 3 and 4:

"The reports from 2006 and 2007 by Senator Dick Marty to the Parliamentary Assembly of the Council of Europe provided important background information to the Office of Commissioner for Human Rights as well as non-governmental human rights organizations and serious investigative media outfits to put together further information on this issue.

However, the Commissioner's Office used multiple sources in its research. I refer back to my answer to Question 2 in response to the Court's questions."

"Would Mr. Hammarberg like to supply further information relating to Romania's participation in the CIA's secret detention and extraordinary rendition programme, including its hosting of a secret CIA prison where the applicant was secretly detained?"

Answer:

"One aspect which should be mentioned is that the CIA rendition and interrogation programme was conducted behind a wall of extreme secrecy. Even after the closure of the programme it has been very difficult to establish facts about these activities. It is no secret that US authorities have taken extraordinary steps to prevent basic facts to be known, even in relation to judicial actors in other countries."

"Given that the European Court of Human Rights has now made findings of fact that multiple European countries participated in a secret CIA rendition programme, does that have an impact on his assessment of the evidence and his conclusion that Romania was also a participant in that programme?"

Answer:

"2. It is true that it is now established that multiple European countries participated in the secret CIA rendition program. Knowledge about the political relationship at the time between Washington and Bucharest may make it seem more likely that Romania was one of these countries. However, that in itself does not prove that that was the case. It does, however, underline the importance of an effective, independent investigation of evidence about such Romanian participation."

"Would Mr. Hammarberg like to supply further information relating to Romania's failure to conduct an effective investigation into its role in the CIA's secret detention and extraordinary rendition programme?"

Answer:

"The human rights violations committed during the CIA rendition and interrogation activities at the time included illegal, secret detention and torture. Data presented by various sources, some of them mentioned in my Memorandum, indicate that an interrogation centre was indeed established in Bucharest. An official policy of total denial and non-response to the quest for a serious investigation appears contrary to the very spirit of internationally agreed human rights. The implied message might be understood as basic human rights - including the avoidance of impunity - is less important that than good cooperation between security agencies."

H. Senator Marty's affidavit of 24 April 2013

"Affidavit of Dr. Dick F. MARTY

These two reports focused on the secret detention and rendition operations carried out by the United States Central Intelligence Agency ('CIA') in its 'war on terror' and the extent to which European states were complicit in the resultant abuses of human rights.

I declare that the information I provide herein is true to the best of my knowledge and belief.

Signature: Dr Dick F. Marty Date: 24 April 2013"

I. The 2015 LIBE Briefing

(a) a facility in Romania had been used by the CIA to hold prisoners;

(b) prisoners had been first transferred to this facility in September 2003;

(c) prisoners had last been transferred out of this facility in November 2005;

(d) other transfers of CIA prisoners between Romania and other countries had occurred between these dates;

(e) the 2014 US Senate Committee Report named five prisoners held in Romania. Several others had been named in other reporting.

(f) some transfers were carried out by planes operated by Aero Contractors/Stevens Express, two shell companies with strong links to the rendition programme (see also paragraphs 69-70 above);

(g) other transfers were carried out by a network of aviation companies working alongside prime contractor Computer Sciences Corporation, operating through a linked group of contracts;

(h) while in Romania, some prisoners had been tortured.

"On 22-23 September 2003, N313P flew from Afghanistan to Poland, Romania, Morocco and Guantánamo Bay. Authoritative sources summarized in the European Court of Human Rights' judgement in Husayn (Abu Zubaydah) v. Poland show that this was a rendition mission. Media reporting has suggested that, at various points, this mission transported Mustafa al-Hawsawi, Walid bin Attash, Abu Zubaydah, Abd al-Rahim al-Nashiri, Ramzi bin al-Shibh and Khaled Sheikh Mohamed. Research by TBIJ/TRP indicates that it also carried Samr al-Barq and possibly others. Of these, research indicates that Walid bin Attash, Khaled Sheikh Mohamed and Samr al-Barq were moved from Poland to Romania on this date.

On 25-26 October 2003, N379P flew from Romania to Jordan, Afghanistan and Iraq. As part of this mission, Mohamed Bashmilah was transferred from Jordan to Afghanistan. Research by TBIJ/TRP indicates that this flight also coincides with the transfer from Romania to Jordan of Samr al-Barq, and that after Bashmilah was brought into Afghanistan the plane took Hiwa Abdul Rahman Rashul and Aso Hawleri to Iraq.

On 25 January 2004, N313P flew from Afghanistan to Romania in the course of a long mission that also took it to Morocco, Algeria, Macedonia and Iraq. Research by TBIJ/TRP indicates that Hassan Ghul was transferred from Afghanistan to Romania on this flight. NGO reports and legal filings show that as part of the same mission Binyam Mohamed was transferred from Morocco to Kabul (22 January), Khaled el-Masri from Skopje to Kabul (24 January) and Khaled al-Maqtari from Baghdad to Kabul (24 January). Research by TBIJ/TRP also shows that this mission coincided with the rendition of Jamal Eldin Boudraa from Afghanistan to Algeria (22 January)."

"[D] Between 25 and 28 January 2004, N85VM flew from Saudi Arabia to Jordan and on to Romania. Research by TBIJ/TRP shows that this mission coincides closely to the entry into the detention programme of Muhammad Qurban Sayyid Ibrahim, and more approximately to that of Saud Memon.

[E] On 12-13 April 2004, N85VM flew from Guantánamo Bay to Romania and Morocco.

[F] On 29 July-1 August 2004, N288KA flew from Afghanistan to Jordan and Romania. Research by TBIJ/TRP indicates that Janat Gul was transferred on this flight.

[G] On 24 August 2004, N308AB flew from Romania to Morocco. After pausing in Dubai it then went from Afghanistan to Algeria on 26 August. In the second stage of the mission it transferred prisoner Laid Saidi to Algeria. No clear evidence exists as to who might have been transferred from Romania to Morocco at this time, although research by TBIJ/TRP indicates that this flight might coincide with the removal of Sayed Habib from CIA detention.

[H] On 1 October 2004, N227SV flew from Morocco to Jordan and Romania.

[I] On 18-20 October 2004, N789DK flew from Romania to Jordan and Afghanistan.

[J] On 18 February 2005, N787WH flew from Morocco to Romania and Lithuania. This coincided with another mission from Morocco to Jordan and Lithuania by N724CL. Lawyers for Abu Zubaydah have stated in his application to the European Court of Human Rights that he was transported on one of these two planes from Morocco to Lithuania.

[K] On 26 May 2005 two planes, N450DR and N308AB, carried out a joint mission between a) Afghanistan and Jordan and b) Tunisia, Jordan and Romania. Research by TBIJ/TRP indicates that these planes were used to transport Abu Faraj al-Libi and Abu Munthiral-Maghrebi from Afghanistan and Tunisia, respectively, to Romania.

[L] On 27 July 2005, N308AB flew from Romania to Egypt.

[M] On 21 August 2005, N860JB flew from Afghanistan to Romania.

[N] On 5-6 October 2005 two planes, N308AB and N787VWH, flew from a) Romania to Albania and b) Albania to Lithuania. Research by TBIJ/TRP indicates that Khaled Sheikh Mohamed was transferred from Romania to Lithuania on these planes.

[O] On 5-6 November 2005, two planes, NIHC and N248AB, flew from a) Romania to Jordan and b) Jordan to Afghanistan."

XII. EXTRACTS FROM TESTIMONY OF EXPERTS HEARD BY THE COURT

A. Mr Fava

"I do not remember the debriefing in detail, but I remember the subject matter of the [transatlantic] meeting, namely, the need for the US Secretary of State, Condoleezza Rice, to discuss with the ministers of all the EU Member States the issue of renditions, and to somehow share with each government the choices made by the US Government, which they had entrusted to their services, and in particular to the CIA, for operational reasons.

I do not remember the statements in detail, but two things emerged from the debriefing: firstly, at that stage, all the governments knew that this operational means had been chosen by the CIA and that the extraordinary renditions were a tool in the war against terrorism. The second point that emerged was a difference in views of the various governments: those that felt that they should support the policy of the US Government and the choice of extraordinary renditions, and then others that felt that the matter of protecting human rights and providing all necessary legal guarantees to terrorist suspects should continue to prevail, namely in accordance with the international treaties.

We never had doubts, both for the precision of the notes, and because, in our opinion, this affair had further confirmation in the course of our work. When, in the framework of our activity, we went on mission to Washington, we met Ms Rice's legal advisor, Mr Bellinger, and Mr Bellinger said 'we never violated the sovereignty of any EU Member States or indeed any other associated States or any States in the process of accession to the EU' , - because everything that was done, which President Bush had somehow claimed in those months, in September 2006, and Bush's confirmation of the extraordinary renditions -�, ' everything that we did was done by always informing and asking for the cooperation, and never trying to prevail over the will of the governments of the Member States' . So, the circumstance that there was a broad knowledge about it, was confirmed by the way in which the US Government told us ' we had always acted in broad daylight, so to speak, not in relation to public opinion, but in relation to the EU Member States' ."

"In the course of our investigations, we did not reach certainty, but we felt, within reasonable doubt, that the Romanian authorities were aware of the fact that there were unauthorised detention centres and that five Romanian airports were used for the transit of planes which were also transporting detainees. In particular, there was a statement by Pascu, the former Minister of Defence, who said shortly before our mission to Romania, that the Romanian authorities, as far as he knew in his position of Minister of Defence, did not have access to certain sites, which were under the control of the Army or the United States intelligence security forces in Romania. Subsequently, when we asked him to account for and if it was possible to go into more depth relating to that statement, the former Minister decided to partly deny it and said he had been misunderstood. The impression we had was that he had actually told the truth, also because Romania chose to undertake a rather superficial investigation of the accusations received.

These were very detailed accusations because, before the European Parliament Inquiry Committee had started its work, The Washington Post and ABC News had produced quite detailed reports where they talked about the existence of detention sites in certain European countries; in certain cases Poland and Romania were actually named. Brian Ross, the ABC journalist, during an audition in Washington, confirmed having received enormous pressure directly from the White House to remove the names of the countries from their programme and that the TV programme should only say 'there are unauthorised detention sites'. But for national security reasons it was requested not to cite explicitly Poland and Romania, and that was the choice made by the TV network. In Romania, we realised that, when confronted with these facts, the attitude of the Committee of Inquiry, set up by the Senate, was acting opaquely, not least because only one chapter of all the conclusions, chapter 7, was actually made public, where every question, every doubt received a negative answer. We thought it was unusual, given the serious nature of the concerns, that the NGOs which had raised those complaints and the journalists who had written about it, had not been not heard. The feeling we had, within a courtesy of institutional relation, was that the matter was closed far too quickly, particularly given the evidence, as you recalled, of these 21 aircraft stopovers relating to all the CIA flights operated by front companies and out of these 21 stopovers, out of these 21 flights, 18 are considered suspicious because of either the destination or the country of origin.

In three cases, these planes were used for a number of extraordinary renditions. Eight victims of extraordinary renditions, among those we ascertained, were transported on planes which had landed in Romania in the course of their transport. Some of these stopovers had no technical justification. The N313P, for example, a Boeing 737, which was used to transport Binyam Mohamed, a British citizen, and El-�Masri, a German citizen, was collected in Skopje, and those flights could well have flown the whole distance without needing to make a stopover in Bucharest. From Kabul to Palma de Mallorca, the flight had full autonomy to reach its destination, the stopover was not technically necessary. Likewise, the plane from Rabat to Poland did not require a stopover in Bucharest. We did not get an answer to that, in that the data we provided the authorities with, in order for them to give us a clarification whether an evaluation on these flights had been made, received very vague replies."

"There was one specific case where the Romanian authorities had had to intervene. It was a plane which had a technical problem on landing, N478GS, which landed on the 6th of December [2004], coming from Bagram in Afghanistan, a city where it was known that the Americans were detaining terrorist suspects. Initially they said they knew nothing about that flight, only that there was just this incident, there was no trace of a crew or of passengers. Only at a later stage, after we had insisted, they gave us a list of passengers, seven US citizens, all with a service passport. One had a Beretta gun and ammunitions. None of them was questioned about the purpose of the trip from Bagram, they returned home on an Air France flight the following day, and it seems that the plane was later transported by a Hercules to another European airport to be repaired. And also on that point - on which many newspapers were raising questions about a plane landing, carrying passengers, with a very special profile, without there being any request for explanations from the Romanian authorities - that point also remained unanswered in our opinion."

"The conclusion we reached was a very strong suspicion that it existed, not the certainty - there was no smoking gun - but a very strong suspicion concerning the points I reported, because of what we were told by Pascu, the former Ministry of Defence, because of the attitude, the rather superficial attitude of the Committee of Inquiry. And also because of a number of considerations that we heard during the interviews: we heard many journalists, many non-governmental organisations. At that time, it was impossible to have any certainty, except if there was an admission by the Romanian Government. In that case however, the Romanian Government could not prove the opposite, either because of the approximate work of its Committee of Inquiry, or because of the acknowledgments that emerged between the lines by those who basically said - also people that we interviewed at the airport - ' we were not in a position to know what was happening '.

An example I found in my notes is the testimony of the chief investigator for the incidents on behalf of the Ministry of Transport, Vulcan, who explained that, for example, in the case of the plane that had landed and had been damaged on landing, when it reached the airport there was no sign of the passengers who had been on that plane. All this was, let us say, outside the procedures and rules. This was a civilian air flight, it was not a State flight, it was not a police flight. Under the Chicago Convention, it was normal that the passengers be identified. The identification was eventually transmitted to us, but only after a considerable insistence on our side. What we were told was: 'we did not meet anyone, we don't know anything'. So, everything, all the information we received, gave us the impression that this matter was handled in a very opaque way and the conclusion we reached is that we could certainly not exclude the fact that a secret detention centre had existed in Romania."

"[By means of] an inquiry which was deep enough to match the seriousness of the charges, well, such an inquiry, according to practice and, let us say experience, which we had, and the work we were doing, could not limit itself to coming to a conclusion without hearing all those who could have produced further elements. The circumstance that this inquiry chose not to disclose its conclusion and its work, with the exception of a chapter, and not to hear, during the work, NGOs or airport staff or journalists, appeared to us to be a rather ambiguous attitude. An Inquiry Committee has the duty to ascertain the truth and use all possible means to get to that truth. It appeared to us, and that was confirmed by the President of the Committee, that it was chosen not to check all [emphasis while speaking] the facts and hear all the people who could have provided further elements. This obviously doesn't give any certainty about the fact that there has been a secret detention centre, but it did not help excluding any suspicions about that."

"When we went to Bucharest to meet the Inquiry Committee, we were told that neither journalists nor NGOs nor airport officials had been heard. They didn't mention the fact-finding missions on airport sites to us, but they did confirm the fact that a large part of those who could have provided a different point of view were not heard. Also the time during which the Committee worked, if I remember correctly well, we are talking about facts of ten years ago, was quite quick. Our Inquiry Committee worked for two full years to come to this final report, but it appears that the Senate Committee worked for far less time and that the conclusion was rather quickly reached, once the working session was set up."

"The evidence we have, through the information provided by the US Control Center and from Eurocontrol, concerns the stopover of 21 flights. But we do know also that in two cases the route of the flight registering the stopover in Bucharest coincided with the extraordinary rendition of two victims. This is the case of the N313P which, in September 2003, from the 21st to the 23rd of September, flew from Washington to Prague, Tashkent, Kabul, Szymany, Bucharest, Rabat, Guantánamo. And during that route, one of the passengers in that plane was Benjamin Mohamed, who was then detained in Guantánamo. Another flight with the same aircraft, in January 2004 from Skopje, in Macedonia, to Baghdad, Kabul, Bucharest and then Palma de Mallorca, tallies with the period in which, on that plane, El Masri, German citizen, was transported, so in at least two cases we are not dealing with stopovers only but rather with an operational cycle of these planes within which, no doubt, these planes were carrying two rendition victims, and these are totally ascertained cases, not only during the judicial phase but also in the conclusions to which our Committee came to, namely that during those days, those persons were being illegally transported in that airplane."

"I testified before the American Senate's Inquiry Committee, although in previous years, and I do recall that there was a strong determination to get to the truth as to what had happened and also a great determination to condemn a practice which, if ascertained, would have been considered to be totally illegal and, furthermore, totally inappropriate for combating terrorism. About this point, we realised in the years immediately following our mission of inquiry under the new administration of the White House that there was a global revision, a very different evaluation on the way they had operated until those years. Extraordinary renditions were very negatively assessed, and this evaluation has also been confirmed by certain CIA officials. We met Vincent Cannistraro, who was a former agent, the Head of Counter-Terrorism in the CIA, who told us that when they had chosen to proceed to extraordinary renditions within the agency, many people realised that this was a mistake because, as actually happened, not only would it create a climate of even greater hostility but it would also have led to the risk of terrible judicial errors, as actually happened subsequently, because often they were led to decide to abduct a suspected terrorist on the basis of information that the local services in Pakistan, Afghanistan, Syria, Morocco and Egypt were prepared to give to CIA colleagues. In certain cases, those were forms of mere manipulation.

We heard four victims of extraordinary rendition - we are the only international organisation that had the possibility to speak with them - and one of them told us about his 11 months spent in a secret prison in Syria, being tortured every day until they had to release him, because it was understood that a great judicial error had been committed. And we also know that we dealt with several cases, however only the cases of the more fortunate people, namely of those who were European citizens or people abducted in Europe, therefore with public evidence that could not be hushed up. But aside the many cases we dealt with, we fear that there are many other cases of citizens less protected, let's say, by their nationality and we have no figures here. So, this was very much in the awareness of the American Senate's Inquiry Committee, as a very heated discussion that developed within the CIA itself during those years, and of which we heard recollected traces, thanks to the availability of some former CIA officers to speak with our Committee."

B. Presentation by Senator Marty and Mr J.G.S. "Distillation of available documentary evidence, including flight data, in respect of Romania and the case of Al Nashiri"

"The firm intention of our presentation today is not to reveal anything new or revolutionary, but rather to offer a cogent distillation of the available data and documentation in a manner which might allow the construction of a more coherent chronology of the CIA's rendition, detention and interrogation programme. In particular, it is a chronology in which the applicant in today's proceedings features prominently, and indeed one in which the territory of Romania, the High Contracting Party to today's proceedings, also holds a prominent status.

The Court will recall, Madam President, the testimony provided by Senator Marty and myself in the cases before Section IV of the Court in December of 2013, in which today's applicant, Abd al Rahim Al Nashiri, was joined by Abu Zubaydah in alleging violations of the Convention by the Republic of Poland. The 'black site' situated on the territory of the Republic of Poland will also be mentioned in today's presentation, but I should like to request that the Court take note of the material presented on that earlier occasion, and indeed the judgments of the Court in those two applications, as a foundation to the material which I will present today."

"It is important to understand the system in which this chronology resides, and it is for that reason that we commence our presentation by explaining the so-called 'global spider's web' which was presented as part of the reports of the Marty Inquiry of the Council of Europe in 2006 and 2007. These are movements not only of military aircraft or conventional aircraft used in the pursuit of counter-terrorism or military operations, but also importantly charter aircraft, private aircraft, operated under the cover of business or private citizens' operations through a complex shell game, in which prime contractors, aviation subcontractors, flight planners and indeed the national authorities of Council of Europe Member States are complicit, ensuring that flight movements are impossible to track or record in real time and indeed extremely difficult to account for in retrospect. I shall use a graphic map to illustrate this system."

"On this map, there are four categories of airports in which aircraft in this system landed. The first is described as 'stopover points'. These are places at which aircraft would conventionally stop for a short period, usually several hours, in order to refuel en route to another location.

The second category, 'staging points', describes locations at which two or more aircraft often converged, crews convened and indeed rendition operations were planned.

The third category, 'pickup points' represent the outcomes of our investigation into specific rendition operations. In each of these places, a detainee was picked up by a rendition crew and rendered to a secret detention facility, usually in the Middle East or North Africa, by the CIA. Several of these, as situated in Europe, have already been accounted for by this Court in cases such as El Masri v 'the Former Yugoslav Republic of Macedonia' , which is depicted here by Skopje, and most recently the case of Abu Omar, the cleric who was rendered after having been picked up on the street in Milan, Italy.

The final category on this list, however, is the most important. These are described as 'detainee transfer or drop-off points'. They were, in short, the destinations of CIA rendition aircraft, places to which detainees were brought for the purpose of being detained secretly, interrogated and, in the majority of cases, ill-treated at the hands of CIA interrogation teams in a manner which, prima facie, would violate the European Convention on Human Rights.

The material interest of our inquiry was to establish in particular which sites in this category were situated on the territory of Council of Europe Member States, and as you can see from the graphic, there are ... two countries initially, implicated in Senator Marty's inquiries. The first of those, Poland, was the subject of the earlier case of Al Nashiri and Abu Zubaydah v. Poland . The second country, which is depicted here by two airports, Timişoara and Bucharest, is the respondent in today's proceedings, Romania. The motif of a global spider's web derived from our efforts to track the movements of aircraft across this system, and I will demonstrate two specific rendition circuits in order to show how that picture is built up."

"The first of these [circuits] occurred in January 2004 and has become notorious because of the sheer number of detainees who were rendered, in the course of a 12-�day period, between multiple different detention sites across the Middle East, North Africa and, indeed, Europe. The aircraft in question, N313P, was operated by the CIA's own aviation services provider, Aero Contractors. Having departed from Washington, it stopped over in Shannon, before flying to a staging point in Larnaca, Cyprus. From there, its first detainee pickup occurred at the detention site in Rabat where, on 22 January 2004, the British resident Binyam Mohamed, was rendered from secret detention in Morocco to secret detention in Kabul. From Kabul the plane flew back in the direction of North Africa to Algiers, carrying with it a recently-released Algerian national from a US military detention site in Kabul. From Algiers it travelled to a second staging point in Europe, in Palma de Mallorca, whereupon the crew embarked on the rendition of Khaled El-Masri. He was picked up on the night of 23 to 24 January in Skopje in 'the Former Yugoslav Republic of Macedonia' and transported via Baghdad to four months of secret detention in Kabul. The same crew, the same aircraft, departed Kabul on the night of 24 January and flew in the direction of Europe to a landing in Romania. I shall explore this particular leg of this flight in extensive detail, later in my presentation. From Romania, the crew and the plane returned to a staging point in Palma de Mallorca, for further rest before returning to Washington. All of the flights depicted on this graphic, Madam President, occurred within the space of 12 days, in January 2004."

"A second rendition circuit, which occurred in September 2003, also implicates the territories of two Council of Europe's Member States. Having departed from Washington, this aircraft, again N313P, flew to Prague in the Czech Republic for a stopover before heading eastward to Tashkent, Uzbekistan, where dissident detainees, handed over to the CIA by local intelligence services, were rendered to secret detention in Kabul. From Kabul, on 21 September 2003, the aircraft transported several detainees out of detention in Afghanistan towards detention in Europe.

The first stop in Europe was the detention site at Szymany, in northern Poland, which was explicitly described in the [ Al Nashiri v. Poland and Husayn (Abu Zubaydah) v. Poland ] proceedings, and this circuit is unprecedented and indeed unique because it is the only occasion on which a rendition flight carrying CIA detainees left one European site and flew directly to another European detention site, in this case in Bucharest, Romania. Again, that particular leg will be the subject of further explanation later in the presentation. From Bucharest, the rendition plane carried further detainees out to Rabat. These were persons who had boarded on earlier legs, not persons leaving Romania, and from Rabat to Guantánamo Bay, where for four months, in late 2003 and early 2004, the CIA operated a secret detention facility apart from the larger military facility at Guantánamo Bay."

"In illustrating those two rendition circuits, I am displaying a small fraction of the rendition flights and circuits that Senator Marty's Inquiry uncovered in 2006 and 2007. The totality of these operations was to create this motif: that of the global spider's web, a system in which rendition aircraft, criss-crossing across the globe, created an almost untraceable and unaccountable system of unlawful detainee transfers."

"One of the key discoveries of our inquiry in 2007 was that rendition aircraft had been very difficult to trace because of deliberate acts of disguise and deceit employed by the CIA and its partners in planning and executing their detainee transfer operations. In 2007, through months of rigorous analysis of aeronautical data, we were able to present evidence of the practice of dummy flight planning by the CIA in conjunction with partners in Polish air navigation services. Since the report of 2007 came out, and this work has been extended and indeed deepened, we are now in a position to demonstrate how the similar practice of dummy flight planning was used in respect of Bucharest Băneasa airport in Romania."

"This is the flight circuit of January 2004, which I demonstrated earlier in the presentation. In particular, we focus on the leg from Kabul, Afghanistan, towards Bucharest, Romania, and in this process I am using specific elements of a data strings analysis which was conducted using four data sources, including those of Eurocontrol and indeed Romanian authorities. At step 1, the first flight plan is filed. A company by the name of Jeppesen, which was the subject of a prominent case before the United States Supreme Court, brought by the American Civil Liberties Union, habitually filed false flight plans in order to disguise the routes of rendition aircraft. In this case, the first flight plan for 24 January 2004 was filed to Timişoara, Romania. But N313P, the aircraft in question, did not fly that route. Jeppesen filed a second dummy flight plan out of the same airport, Timişoara, to Palma de Mallorca in Spain. Again, this was a route which N313P had no honest intention to fly. Furthermore, a third and contradictory dummy flight plan was filed, this time in respect of Timişoara to Prague, and Romanian authorities, in their own efforts to understand the stated intentions of this aircraft, also made references to both legs 2 and 3 in their own filings on the aeronautical fixed telecommunications network. The aircraft did then embark on the evening of 24 January 2004. On board was a CIA detainee by the name of Hassan Ghul who had been handed to the CIA by United States military authorities. He was rendered out of a 'black site' in Kabul to the Romanian 'black site' situated in Bucharest. This landing in Bucharest was an undeclared landing, at no point had a valid flight plan for this route been filed in the international AFTN system. At this point, Romanian authorities, specifically the NOTAM office at Bucharest Băneasa Airport, began to file plans in respect of this aircraft. A plan was filed for the first time citing Bucharest airport, by the Romanian authorities, from Bucharest to Palma de Mallorca and indeed, that evening, having dropped off the detainee, the CIA aircraft flew the route filed by their Romania counterparts. Finally, Jeppesen, the CIA's flight planner, resumed its duties of flight planning and carried the aircraft and its crew back in the direction of the United States. What this graphic represents, honourable judges, is not a one-off occasion. It is rather a systematic practice deployed by the CIA and its aviation service providers to disguise CIA flights into and out of its most sensitive operational locations. In our reporting in 2006 and 2007 we were often confounded by the apparently contradictory and inconsistent information provided to us by multiple sources of data, including those inside of Romania in the Senate Inquiry Committee and indeed among the various aviation authorities whose filings did not appear to add up. We now know that the reason for these inconsistencies and contradictions was the deliberate practice of dummy flight planning employed by the CIA. But they cannot execute this tactic alone. They depend upon, however discrete, a role played by the national counterpart authority, and just as in the case of Poland, demonstrated in the earlier proceedings, here the Romanian air navigation services filed plans in respect of an aircraft which was on its territory for the sole purpose of transporting detainees into secret detention.

Romanian documentary records demonstrate the landing of this aircraft at Băneasa Airport on 25 January, despite the absence of a valid flight plan. This document refers to the 'flown' flight path, the actual flight path, from Kabul to Bucharest, to Palma de Mallorca, but that was a route for which no flight plan existed in the international system of control. Further similar documents illustrate the ground handling and other services provided to this aircraft whilst it was on the ground for a short period on that night at Băneasa Airport, and through our investigations we have established that this disguised flight forms part of a recognised CIA rendition circuit. These are the individual routes which I have already demonstrated with the graphic, I shall provide the full detail to the Court in written form after the presentation. But as I stated, this was not a one-off, this was part of a systematic practice, and through our investigations we have generated numerous, up to twelve, individual instances on which CIA rendition aircraft have transferred detainees into, and out of, Bucharest, Romania"

"This set of flight logs pertains to the unprecedented transfer I described earlier, in which detainees from Poland, including the presumed architect of the 9/11 attacks, Khalid Sheikh Mohammed, were transferred directly to Romania on the night of 22 September 2003, the opening of the Romanian site. This particular set of logs depicts an instance in which a detainee was transferred out of Bucharest and taken to further secret detention here in Amman, Jordan, and that practice again was prevalent because detainees did not tend to stay in one secret detention site for lengthy periods, counted in years; they were rather rotated and recycled through multiple different CIA secret detention sites, on periods averaging between six and twelve months. Here, a detainee brought to Romania in September was taken out in October and transferred to further secret detention in Jordan. I will provide all the flight logs and the evidence that supports them to the Court upon request."

"The [2014] Senate Committee Report also provides extensive insight into the timeframe, the life span for which the 'black site' in Romania was operated. It is important at this point to state that the word 'Romania', the country name, does not appear openly in the declassified version of the report. Rather, as with all the sites in question, it is referred to by a colour code name.

The code name Detention Site Black corresponds in such precise and extensive detail with every one of the operations I have described in today's presentation, from the first flight into Romania in September 2003 through the transfers of individual detainees, including Hassan Ghul, Khalid Sheikh Mohammed, Abu Faraj al-Libi, into Romania on specific dates in accordance with their interrogation schedules that Romania, its territory, its airspace, its detention facility, is inseparable from 'Detention Site Black'. It is my premise, categorically, that it is the case that Romania is the site referred to as 'Detention Site Black'. From that point of departure, we are able to find several specific references. Here is one, in a section which describes Detention Site Black and another CIA site, which states that ' CIA detainees were transferred to Detention Site Black in this country in the fall of 2003' . It goes on to state that this coincided with the closure of the predecessor 'Quartz' base, which is referred to in the report as Detention Site Blue. In terms of its closure, it is stated in the report that after the publication of the Washington Post article, that is the piece of reporting, the Pulitzer Prize-winning article by Dana Priest, to which Senator Marty referred, dated 2 November 2005, the authorities of this country demanded the closure of Detention Site Black within a number of hours fewer than 100. We can see that from the redaction, it does not state exactly how many hours, but it is no more than four days. And in fact, as I described, 5 November 2005, using its practices of dummy flight planning and a further disguise which I will demonstrate shortly, the CIA transferred all of its remaining CIA detainees out of the facility within this time period."

"Again, as stated, flights into and out of Romania correspond exactly with the narrative described in the [2014 US Senate Committee Report]. It might be pointed out, in relation to this specific package, that in order for the authorities of the host country to demand the closure of a detention facility, they must have known of its existence. Furthermore, in light of the report in the Washington Post , which went into intimate detail of the CIA's operations including the forms of ill-treatment and interrogation to which detainees therein were subjected, it follows that the authorities of the host country of Detention Site Black - and let me be clear - that is the authorities of Romania, must have known of the nature of operations occurring on their territory."

C. Senator Marty

"We were fortunate enough to find sources, and this must be stated clearly, firstly in the United States, of a very high level. It is important to know that within the American administration and the intelligence services, especially those of the CIA, there were a lot of people who were not at all in agreement with what Rumsfeld and Dick Cheney had imposed upon the CIA. And I, who had already had many contacts as a prosecutor with American services, was thus able to obtain this information. What is important to say is that we devised a working methodology, we never relied on one source alone, but when you get important information from once source, it is much easier to activate and to receive further information given in confidence from other sources. In the end we had about thirty sources, if I recall, that are in different countries and notably in Romania, and there too at a rather surprising level. And in 2006 ... we were above all able to concentrate on the movements of rendition flights and we were able to trace this famous spider web, this spider's web. This triggered off all sorts of other information that hailed from people who agreed to talk, of course, under the most rigorous confidentiality. Let me point out that many of these people risked a lot, several decades of imprisonment; they could have been accused of high treason in their countries. ...

The seriousness of the sources that provided us with information was strikingly confirmed by the Feinstein report, the report of the American Senate which was published some 10 years after my first report. In the Feinstein report there are absolutely extraordinary confirmations of what we had already described, in part at least, or in the essential parts. The Feinstein report sought to cover up the countries by giving them a colour. If we know a little about the events that are described, it is child's play to see which countries lie behind these colours. ...

We focused our initial research on the United States because it seemed obvious to us that the leaks had occurred in the United States and knowing how serious the Washington Post is, in particular the journalist Dana Priest, who is one of the major US journalists, who we knew had contacts with certain highly placed people in the US administration and the secret services, we thought we ought to start digging in that direction. And the fact that Human Rights Watch, which is also a very serious NGO, had published the names of Poland and Romania, meant that they too had important sources of information. Our research ... enabled us to encounter not second-level agents but very important people in the US services. ...

When we were able to obtain that information, not just from one American source but from several, we tried to make contacts in other countries in Europe and when the people we had contacted understood that we already knew a lot and that we had got this information from the US secret services, those people were far more prepared to speak out. I think you need to understand the dynamic in this way: it was possible to obtain very high-level intelligence. I will not name the countries, but in some countries we were even up to the level of ministers who spoke to us. Of course, one of the fundamental aspects for my part was that I gave all possible guarantees of protecting our sources. So we took every possible precaution to protect our sources, to make it impossible for people to trace back to our sources. ..."

"... I would also like to point out that in the framework of the NATO system, for all these operations, NATO had applied the very highest degree of secrecy under the NATO code. This highest secrecy code can be summed up as the 'need to know' principle; it is only people who strictly need to know who should be aware of what is going on and they must only be aware in as far as it is necessary. So I do not think that the Romanian authorities knew that there was waterboarding, that there was torture, and so on. But the people [the high-office holders] I referred to, and this is based on extremely precise testimony, must have known that the CIA had used their territory for transfers of prisoners in the context of the war on terror. We never said that the Poles or the Romanians had run those prisons, we always said those prisons were exclusively managed by the CIA. And the CIA would not accept any intrusions, not even by any other American services. What we do say is that those people - probably the majority of the government - knew nothing about it but those people must of necessity have been aware that something very unusual was going on: planes were landing, people were being disembarked, and the like. Or in any event they did everything to see nothing, hear nothing and say nothing, and that is a classic approach which we have in all countries where there have been renditions or secret prisons."

"No, because we did not have a specific indication. The site was, however, the most protected element secrecy-wise, even people who knew that this anti-terrorist operation was going on did not perforce know where the site was precisely located. For Poland, it was easier. We were even able to go in situ and were able to obtain information in situ . So, for [Romania], it was far more complicated."

"I say it is true that at the time we were not in a position to indicate the place of detention, but that Romania participated in these CIA programmes, there is no shadow of a doubt in my mind about that."

D. Mr J.G.S.

"It is quite clear to me that the Romanian authorities not only should have known, but in fact did know of the nature and purpose of the CIA's secret operations on its territory. In our report of 2007, for the Marty Inquiry, we inferred this conclusion already then, 9 years ago, based upon excellent source information that we had procured from both sides of the Atlantic, multiply corroborated, validated and verified by documentary records, and rooted in our understanding of a conceptual framework, and a practical implementation of bilateral agreements struck between the CIA and its counterpart agency in Romania.

But I can say to the Court today that this is no longer an inference, it is no longer simply a collation of disparate sources, because the [US] Senate Committee of Inquiry, and I refer the Court to page 97 of that 499-page executive summary, has explicitly stated that the host authorities of the country in which Detention Site Black was located, provided co-operation and support for those activities, and indeed that the CIA, through its station in Romania, was able to provide a substantial sum of money, in the region of ten million United States dollars, as a 'subsidy' to its Romanian counterparts in recognition of their active participation.

In the report in 2007, we talked about the extraordinary permissions and protections that Romania provided. We talked notably about secure zones, of which there were several on Romanian territory, and of which we knew of the existence of at least one. We characterised this as being a level of cooperation that depended on authorisation from the highest levels of the Romanian state authorities. That aspect too, Your Honour, is confirmed by the US Senate Committee Inquiry. It talks about, explicitly in that same paragraph, on that same page, the highest levels of the country's government. So what we heard from our sources who, incidentally, have remained credible upon our assessment, has now been formalised in the form of the reporting by the Senate Committee which, incidentally, had access to a vast array of classified information, which we did not have access to.

And so we wish to state, quite clearly, categorically, that the Romanian authorities, at the highest level, did know about the existence of secret detention on their territory and furthermore that they were aware of the precise purpose of the rendition flights entering and exiting the country, and the conditions, or roughly the conditions, under which detainees were held in between their arrivals and their departures."

"I can confirm that I participated closely in the inquiry under Commissioner Hammarberg which led to the production of the memorandum in March 2012 and I can also confirm that, at that point, almost five years after the conclusion of our second Marty Report, we were in possession of substantially more information, notably through the declassification of reports from the United States, but also through an evolving process of developing sources, developing new relationships, filing requests for information with different authorities, and indeed benefiting from a wide range of partnerships and alliances in some of the countries in question and indeed in the United States.

The process of linking a specific detainee to a specific flight was, indeed, for a long time elusive. In order to make this connection, one requires both authoritative information about the planning and execution of the flight and furthermore, from the CIA itself, authoritative information as to the interrogation schedule, the process of debriefing or interrogating the detainee, and specific junctures in that detainee's detention which constitute a move or a change or a development or a transition in that detainee's treatment. As I demonstrated in my presentation with reference to the CIA Inspector General's Report, there are occasions in the declassified documents on which moves are referred to explicitly, and indeed are given dates. When that move links a particular named individual, such as Al Nashiri, with a point of provenance, such as Thailand, and a point of destination, such as Poland, it is then possible, within a very small margin of error, to go looking for a flight that corresponds with those dates.

This example was indeed the breakthrough in that regard, this methodology, because for the first time in the Inspector General's Report [in the present judgment referred to as 'the 2004 CIA Report'], we were told that an interrogation schedule concluded on 4 December [2002]. The reason for its conclusion was a move, and furthermore that Al Nashiri, together with Abu Zubaydah, was taken to another 'black site'. The only means of transportation that the CIA used to move detainees was rendition aircraft, and through our assessment and investigation of rendition aircraft over multiple years, we have been able to crack that system and to trace those movements using contractor documentation, international aeronautical services information, and all the other logs that I have used in the presentation. So the linking depends on a specific correlation of information from both the aviation side and the operational side in the CIA's 'black sites' themselves. I would direct you, Your Honours, to the [US] Senate Committee Inquiry for multiple further specific date references and specific references to individuals being moved between different sites."

"I can give you two specific examples. Ramzi bin al-Shibh, who had been in Morocco with Al Nashiri initially, in 2003, was taken back to Morocco, as was Ibn al-Shaykh al-Libi, who was the source of the now notorious intelligence on Iraq, which led Secretary of State Powell to make a case for war. He was held in Guantánamo Bay at the same time as Al Nashiri, but he was taken to Morocco. How do we know? Because he features in the further descriptive narrative regarding Morocco in the [US] Senate Committee Report, as does Bin al-Shibh. These two individuals are cited as having gone back to Morocco and having found the conditions of their detention there to be impossible to sustain because of abuse or cries of abuse they could hear taking place in adjacent cells, part of the Moroccan system. This again was a source of some acrimony, some misunderstanding, some difficult relations between the CIA and the Moroccan counterparts and as such features prominently in the Senate Committee's Inquiry. There is no mention whatsoever of Al Nashiri there, and I maintain that is because he was in Romania."

"Thank you for your question, Madam. This allows me to introduce to the Court some very important insights gleaned from the flight planning process at its point of origin in the United States and the documents of which are included in the materials before the Court by virtue of the docket in the New York State Court litigation between Sportsflight Air Inc. and Richmor Aviation.

In particular, there are documents within this docket which refer specifically and in advance to deliberate attempts to file false destinations for rendition aircraft. There is, for example, a differentiation between points of departure, points of destination, as Madam Agent rightly said, 'alternates', and then, what the CIA describes as 'hard arrival points'. 'Hard arrival' were the real destinations, the real timings that the CIA demanded its contractors to fulfil. Everything else in the flight planning process, as was delegated to Jeppesen, Air Rutter International and other contractors, was allowed to have a veneer of compliance with international civil aviation rules, but was in fact nothing more than a cover, a shell, behind which these unlawful operations actually took place.

I shall address directly, Madam, your question: how can I differentiate between a simple in-flight change of plan? I could countenance such an alternative explanation if it were to have happened but once, perhaps twice or occasionally in a sequence of rendition flights. But in respect of Romania alone, this systematic practice was deployed up to twelve times, using every time the same methodology. Specifically the points of departure would be fixed because they were physically where the plane took off from, but points of destination, ADES, as they are called in the AFTN system, were never stated as the actual airport to which the rendition aircraft was destined. If at all Bucharest Băneasa appeared, it appeared only as an alternate, and on several occasions it did not appear at all in any flight plan, either as destination-in-chief or as alternate, despite the fact that trip sheets, government contracts, even pre-emptive billing invoices had been prepared in the United States by the CIA's contractors, stating explicitly what the hard arrival airport and time was, and on each occasion Bucharest - Baneaşa was that hard arrival point. It cannot be put down to mere innocent coincidence, in-flight change of plan, when it is conceived of in advance, when there is only one purpose for which these rendition flights are being deployed, and when the only site that corresponds with the cables, the contracts, the flight plans, the instructions, the billing invoices and, indeed, the multiplicity of source testimony, is the 'black site' hosted on Romanian territory in Bucharest. So an alternative explanation does not fit in these circumstances; there is one clear and categorical truth, and that is, this was a deliberate act of deceit to disguise unlawful detainee transfer activity."

He further added:

"... [I]n the process of executing these renditions, the CIA did file flight plans for every aircraft in which dummy destinations were inserted into the planning text in order to provide the aircraft with a premise upon which to enter the airspace of the country in question. So, for example, as the Court heard in the proceedings against Poland, on multiple occasions, aircraft filed for destinations such as Prague in order to have a premise to enter Polish airspace, after which the Polish air navigation services would navigate them to a landing at Szymany. When the Polish authorities produced records of landings at Szymany, they stated explicitly in their own documentation that several of these landings had occurred ' brak FPL ' ('without a flight plan'), precisely the point that you have just suggested would be impossible. It happened. In Romania, as I demonstrated in my presentation today, flight plans were filed for alternative destinations which included other Romanian airports, Timişoara, Constanţa, but only in order to give that aircraft a premise upon which to enter Romanian airspace. From entering airspace, Romatsa and the counterparts in the Romanian authorities, navigated those aircraft to undeclared landings at Bucharest, Băneasa. I have this upon the first-hand authority of persons involved in the execution of those rendition flights. I also have Romanian documentation demonstrating these landings at Bucharest, Baneaşa, indisputably because a plane is physically on the ground in Bucharest and yet, for the same flights, having trawled all the multiple sources of aviation data in my possession, I have not found any flight plan valid for a landing at Băneasa. Hence, the same systematic practice, deliberate disguise and deceit, used by the CIA but dependent upon the complicity and cooperation of Romanian counterparts."

"...[T]hose aircraft used by the CIA in conjunction with its in-house aviation services provider, Aero Contractors, more often than not cited this special designation in their flight plans. There were two aircraft in particular, both of which travelled to Romania, N313P and N379P, which fall under this designation. It is explicitly stated and cited in the flight plans filed by Jeppesen Dataplan, the aviation services provider used for these aircraft, that STS or state indicator is averred as a special privilege vis-à-vis all authorities whose territories the aircraft will traverse or land in, in the course of its circuit.

What that status affords the flight is a different characterisation in the flight plans, but that is not to suggest that upon landing in Romania there would be any diplomatic reception or any form of special treatment, in fact. On the contrary, most of these aircraft landed without being subjected to basic border guard controls, basic customs inspections. They were not granted special treatment in the sense of a state designation, they were in fact granted special treatment of an entirely different sort, of a sort which indicates permission to perform unlawful detainee transfers. So you ask me, why did they invoke the STS indicator, or on what basis does it change the status? What it does, is that it creates a further layer of deceit as to the real purpose of these aircraft, it creates the impression that these aircraft are somehow untouchable and it creates the impression that they ought not to be scrutinised by their receptor authorities. But does it change how they are received on the ground? In itself, no, it does not."

E. Mr Black

"I believe it is clear, beyond reasonable doubt, that there was a CIA detention facility in Romania. I am convinced on a wide array of different types of evidence that it operated from September 2003 until November 2005. I believe it is clear beyond reasonable doubt that, among others, Khalid Sheikh Mohammed was held in it, Hassan Ghul was held in it, Janat Gul was held in it, Abu Faraj Al-Libi was held in it, Al Nashiri was held in it, Walid Bin Attash was held in it, on two occasions in fact, Samr al-Barq was held in it, Abu Munthir al Maghrebi was held in it. I believe there are indications that others, including Hambali, Lilie, Mohammed Qurban Ibrahim, were held in it. All of these statements are backed by, if you will, an array of evidence which includes aviation data that can be categorically related to the US Government's rendition programme. It includes statements made by the [US] Senate Committee Report that was declassified in 2014, it includes new material that has just recently been declassified by the government, by the US Government earlier this month.

My findings in which I discuss the evidential basis for these statements were most recently formulated in a briefing that I wrote for the LIBE Committee in September last year. I am not sure if the Court has seen that document, I understood that the LIBE Committee was going to publish it last year, but in fact I found that perhaps they did not. If the Court has not seen that document, then of course I would be happy to provide it. Since I wrote that, as I say, there have been some new developments in the last few months where further research on the basis of the [US] Senate Committee Report and newly declassified documents from the CIA that came out a few weeks ago, have further confirmed the findings that I made in the original briefing and have also added some new names and some new information to the list. But I mean, you know, I can give you, if you wish, I could give you the dates of when each of those specific individuals were held in Romania to the best of my knowledge and findings, but I mean the fact that those individuals were held in Romania at various points between 2003 and 2005 is absolutely beyond reasonable doubt, there cannot be any alternative narrative to that that makes any sense.

In terms of your question as to where precisely the facility was where they were held, this is not something that really I have exhaustively researched because it is not really something that the methodologies I use are particularly able to build up a picture of. I mean I would go so far as to say that it is likely, on the basis of all the evidence I have seen, that the facility was in Bucharest. We are all aware of the publication by Associated Press and others a few years ago that it was in the basement of the ORNISS building. I mean I cannot say that my researches would confirm that or deny that, certainly I have not seen anything that would tend to deny it."

"I think it is clear that the authorities were aware of it because, among other things, they received money for it. They received more than eight million dollars, we can determine from a reading of the [US] Senate Committee Report, how much more than eight million dollars I do not know. And I think it is also clear from a reading of that report that they demanded its closure at a certain point in November 2005. And I believe it is normally common practice, as far as we can tell from the Senate Report which I take in this instance to be authoritative, that the host country's officials were in the know about these facilities and the purposes of them. I think that it is clear, in the case of Romania, that there were officials who were aware that they had been paid money by the CIA to house prisoners and that the prisoners were being transported in by covert means."

"I have gone into it in more detail in the briefing that I prepared for the LIBE Committee, but to kind of give a brief summary, Detention Site Black is the site that fulfils, in terms of its operating times, the flight paths that we know to have been connected to prisoner movements and to the CIA's rendition programme. Detention Site Black is the one that correlates precisely with those flight paths that our research has discovered, has reconstructed, if you will. There are, there are other indicators which include cables that are sent from Detention Site Black that correspond to prisoners who were flown into Romania on flights that are connected via their contracts and invoice numbers to the CIA rendition programme, cables that specifically reference the behaviour of certain prisoners. For example, the Senate Report makes reference to a number of prisoners who were held at site 'Black' whose movements have been correlated with flights moving into Romania or out of Romania within the timeframe that makes sense."

"...[T]here are a series of characteristics which, I mean, which prisoner transfers, as in the point of pick-up and the point of drop-off, they occur on specific days, on specific times that can be cross-correlated with documents relating to the movements of prisoners. They occur in specific destinations, which consistently match other accounts of the movements of prisoners. It is when you look at the totality of the evidence, it is clear, for example, that some destinations are commonly used as rest and recuperation. There are places where crews go before they carry out a transfer or after they have carried out a transfer, so those are destinations like Mallorca, Dubai, there are others, and there are destinations that are commonly technical refuelling destinations which tend to be in the Atlantic because they occur when the planes are moving from Washington D.C. to North Africa, the Middle East or Europe to carry out rendition flights, so those are typically places like the Azores or Ireland, Scotland. Now, in a sense, to answer that question fully we would have to go through each of these flights in sequence and say why it does not make sense that in any one of them Romania is the refuelling destination rather than the prisoner movement destination, but I mean rather than do that, I would say in summary that, when you take the totality of the evidence, the consistency with which the points of transit through Romania match the points of transit that we know apply to the movement of prisoners, is such that it does not really allow any alternative narrative."

THE LAW

I. THE GOVERNMENT'S PRELIMINARY OBJECTIONS TO THE ADMISSIBILITY OF THE APPLICATION

A. Romania's lack of jurisdiction and responsibility under the Convention in respect of the applicant's alleged rendition to Romania, detention and ill-treatment in a CIA detention facility in Romania and transfer out of Romania

"The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of [the] Convention."

B. Non-compliance with the rule of exhaustion of domestic remedies and the six-month rule

"The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken."

(a) Non-exhaustion of domestic remedies

(b) Non-compliance with the six-month term

(a) Non-exhaustion of domestic remedies

(b) Non-compliance with the six-month rule

II. THE COURT'S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF EVIDENCE

A. The parties' positions on the facts and evidence

(a) Lack of evidence demonstrating that a CIA "black site" operated in Romania

(i) Contradictory statements as to the "life cycle" of the alleged CIA "black site" in Romania

(ii) Contradictory statements as to the location of the alleged CIA "black site" in Romania

(b) Inconsistencies in the applicant's account regarding the dates of his alleged rendition to and from Romania, and his secret detention in Romania

(c) Lack of credibility of evidence adduced by the applicant, in particular the Marty 2006 and 2007 Reports, findings made by the Council of Europe's Commissioner for Human Rights in 2009-2012, Reprieve research and CIA declassified documents

(d) Lack of evidence demonstrating that certain planes landing in Romania between 22 September 2003 and 5 November 2005 carried out the CIA extraordinary rendition missions

(e) Lack of evidence demonstrating that the Romanian authorities entered into "secret cooperation agreements" with the CIA and cooperated in the execution of the HVD Programme

(f) Lack of evidence demonstrating that the Romanian high-office holders agreed to the running of a secret detention facility by the CIA on Romanian territory, provided premises and knew of the purposes of the impugned flights

(g) Lack of evidence of Romania's knowledge of the CIA HVD Programme at the material time

(a) As regards the existence of a CIA secret detention facility in Romania and the applicant's secret detention in Romania

(b) As regards the alleged inconsistencies in the applicant's account regarding the dates of his rendition to and from Romania and his secret detention in Romania

(c) As regards the planes landing in Romania between 22 September 2003 and 5 November 2005

(d) As regards the Government's allegation of a lack of credibility of sources of information and evidence

(e) As regards Romania's' cooperation with the CIA and its complicity in the HVD Programme

(f) As regards Romania's knowledge of the HVD Programme at the material time

B. Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on public knowledge of the US practices in respect of captured terrorist suspects

C. The parties' positions on the standard and burden of proof

D. The Court's assessment of the facts and evidence

(a) Period from mid-October 2002 to 6 June 2003

(b) Whether the applicant's allegations concerning his secret detention and transfers in CIA custody from 6 June 2003 (transfer out of Poland) to an unspecified two-digit date in April 2004 (transfer out of Guantánamo) were proved before the Court

"408. In the light of that accumulated evidence, there can be no doubt that:

...

...

...

(a) Whether a CIA detention facility existed in Romania at the time alleged by the applicant (22 September 2003 - beginning of November 2005)

(b) Whether the applicant's allegations concerning his rendition to Romania, secret detention at the CIA Detention Site Black in Romania and transfer from Romania to another CIA secret detention facility elsewhere (from 12 April 2004 to 6 October 2005 or 5 November 2005) were proved before the Court

(i) Preliminary considerations

(ii) Transfers and secret detention

(iii) The applicant's treatment in CIA custody in Romania

(a) Relations of cooperation between the Romanian authorities and the CIA, including an agreement to host a detention facility, request for and acceptance of a "subsidy" from the CIA, provision of premises for the CIA and acquaintance with some elements of the HVD Programme

(i) Agreement to host a CIA detention facility, request for and acceptance of a "subsidy" from the CIA and provision of premises for the CIA

Spiegel Online further reported that Mr Talpeş had confirmed Mr Iliescu's statements, adding that at the turn of 2002-2003 he had received a request from a representative of the CIA in Romania for premises, which the CIA needed for its own activities. He had arranged for a building in Bucharest to be given to the CIA. The building was used by the CIA from 2003 to 2006 and no longer existed; Mr Talpeş would not reveal its location (see paragraph 245 above).

(ii) Acquiescence with some elements of the HVD Programme

(b) Assistance in disguising the CIA rendition aircraft's routes through Romania by means of the so-called "dummy" flight planning

(c) Special procedure for CIA flights

(d) Informal transatlantic meeting

(e) Circumstances routinely surrounding HVDs transfers and reception at the CIA "black site"

(f) Public knowledge of treatment to which captured terrorist suspects were subjected in US custody in 2002-2005

(a) Romania knew of the nature and purposes of the CIA's activities on its territory at the material time.

III. ROMANIA'S JURISDICTION AND RESPONSIBILITY UNDER THE CONVENTION

A. The parties' submissions

B. The Court's assessment

IV. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

A. Procedural aspect of Article 3

(a) The Government

(b) The applicant

(a) The UN Special Rapporteur

(b) APADOR-CH

(c) Joint submissions by Amnesty International (AI) and the International Commission of Jurists (ICJ) on "effective investigation"

(d) Media Groups

(a) Admissibility

(b) Merits

(i) Applicable general principles deriving from the Court's case-law

(ii) Application of the above principles to the present case

B. Substantive aspect of Article 3

(a) The Government

(b) The applicant

(a) Admissibility

(b) Merits

(i) Applicable general principles deriving from the Court's case-law

(ii) Application of the above principles to the present case

(α) Treatment to which the applicant was subjected at the relevant time

(β) Court's conclusion as to Romania's responsibility

V. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

VI. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

A. The parties' submissions

B. The Court's assessment

VII. ALLEGED VIOLATION OF ARTICLE 13 IN CONJUNCTION WITH ARTICLES 3, 5 AND 8 OF THE CONVENTION

"Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

VIII. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

"In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial by an independent and impartial tribunal established by law."

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

IX. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION TAKEN TOGETHER WITH ARTICLE 1 OF PROTOCOL NO. 6 TO THE CONVENTION

A. The parties' submissions

B. The Court's assessment

(a) Applicable general principles deriving from the Court's case-law

(b) Application of the above principles to the present case

X. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises.

XI. APPLICATION OF ARTICLE 46 OF THE CONVENTION

"1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.

A. The parties' submissions

B. The Court's assessment

XII. APPLICATION OF ARTICLE 41 OF THE CONVENTION

"If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party."

A. Damage

In view of the foregoing, the Court considers that the applicant has undeniably sustained non-pecuniary damage which cannot be made good by the mere finding of a violation.

B. Costs and expenses

C. Default interest

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable in respect of non-pecuniary damage;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 31 May 2018.

Abel Campos Linos-Alexandre Sicilianos Registrar President

ANNEX I

List of abbreviations used in the Court's judgment

ACLU - American Civil Liberties Union

AI - Amnesty International,

APADOR-CH - Association for the Defence of Human Rights in Romania - the Helsinki Committee

ATS - Air Traffic Service

CAT -� UN Committee against Torture

CIA - Central Intelligence Agency of the United States

CNSD - Lithuanian Seimas Committee on National Security and Defence

CNSD Findings - the Annex to the Seimas' Resolution No. XI-659 of 19 January 2010 - "Findings of the parliamentary investigation by the Seimas Committee on National Security and Defence concerning the alleged transportation and confinement of persons detained by the Central Intelligence Agency of the United States of America on the territory of the Republic of Lithuania"

CSC - Computer Sciences Corporation

CTC - Chief of the Counterterrorism Center

DCI Confinement Guidelines - CIA Guidelines on Confinement Conditions for CIA Detainees signed on 28 January 2003

DCI Interrogation Guidelines - CIA Guidelines on Interrogations Conducted Pursuant to the Presidential Memorandum of Notification of 17 September 2001 signed on 28 January 2003

DDO - CIA Deputy Director for Operations

EITs - Enhanced Interrogation Techniques

EP - European Parliament

EU - European Union

Fava Inquiry - inquiry following the European Parliament's decision setting up a Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners of 18 January 2006, Rapporteur Giovanni Claudio Fava

FBI - Federal Bureau of Investigation

Flautre Report - Report of the European Parliament Committee on Civil Liberties Justice and Home Affairs on alleged transportation and illegal detention of prisoners in European countries by the CIA: follow-up of the European Parliament TDIP Committee (2012/2033(INI)), Rapporteur Hélène Flautre, adopted by the European Parliament on 11 September 2012

HVD - high-value detainee

HVD Programme - High-Value Detainees Program

HVTs - high-�value targets

ICCPR - International Covenant on Civil and Political Rights

ICJ - International Commission of Jurists

ICRC - International Committee of the Red Cross

III Geneva Convention - Geneva (III) Convention relative to the Treatment of Prisoners of War of 12 August 1949

IV Geneva Convention - Geneva (IV) Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949

ILC Articles - International Law Commission 2001 Articles on Responsibility of States for Internationally Wrongful Acts

IRCT Convention International Rehabilitation Council for Torture

JITPS Convention Jeppesen International Trip Planning Service

LIBE - European Parliament's Committee on Civil Liberties, Justice and Home Affairs

Marty Inquiry - inquiry into the allegations of CIA secret detention facilities in the Council of Europe's member States launched by the Parliamentary Assembly of the Council of Europe on 1 November 2005 and conducted by Senator Dick Marty

Media Groups - twelve media organisations represented by Howard Kennedy Fsi LLP

MON - covert action Memorandum of Notification signed by President George W. Bush on 17 September 2001

NATO - North Atlantic Treaty Organisation

new CCP - Romanian Code of Criminal Procedure of 1 July 2010 in force as from 1 February 2014

ODNI - Office of the Director of National Intelligence

OGC - CIA Office of General Counsel

OIG -� Office of Inspector General

OLC - Office of Legal Counsel

old CCP - Romanian Code of Criminal Procedure in force until 31 January 2014

ORNISS - the National Registry Office for Classified Information ( Oficiul Registrului Naţional al Informaţiilor Secrete de Stat)

OSJI - Open Society Justice Initiative

OTS - Office of Technical Service

PACE - Parliamentary Assembly of the Council of Europe

PICCJ - Prosecutor's Office attached to the Court of Cassation - ( Parchetul de pe lângă Ȋnalta Curte de Casație şi Justiție)

RAS - Romanian Airport Services

RCAA -� Romanian Civil Aeronautical Authority ( Autoritatea Aeronautică Civilă Română)

RDI Programme - Rendition Detention Interrogation Program

Romanian Senate Inquiry Committee - Inquiry Committee for investigating statements regarding the existence of the CIA detention facilities or of some flights of planes leased by the CIA on the territory of Romania ( Comisia de anchetă pentru investigarea afirmaţiilor cu privire la existenţa unor centre de detenţie ale CIA sau a unor zboruri ale avioanelor închiriate de CIA pe teritoriul României) set up by the Romanian Parliament on 21 December 2005

ROMATSA - Romanian Air Traffic Services Administration

TBIJ/TRP - Bureau of Investigative Journalism and the Rendition Project

TDIP -� European Parliament's Temporary Committee on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners

UN - United Nations

UN Special Rapporteur - UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism

UNCAT - UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984

Venice Commission - European Commission for Democracy through Law

ANNEX II

List of references to the Court's case-law

A. v. the United Kingdom , 23 September 1998, Reports of Judgments and Decisions 1998-VI

Abuyeva and Others v. Russia , no. 27065/05 , 2 December 2010

Aksoy v. Turkey , 18 December 1996, Reports of Judgments and Decisions 1996-VI

Al Nashiri v. Poland , no. 28761/11 , 24 July 2014

Al-Adsani v. the United Kingdom [GC], no. 35763/97 , ECHR 2001-XI

Al-Saadoon and Mufdhi v. the United Kingdom , no. 61498/08 , ECHR 2010

Al-Skeini and Others v. the United Kingdom [GC], no. 55721/07 , ECHR 2011

Anguelova v. Bulgaria , no. 38361/97 , ECHR 2002 IV

Armani Da Silva v. the United Kingdom [GC], no. 5878/08 , ECHR 2016

Aslakhanova and Others v. Russia , nos. 2944/06 and 4 others, 18 December 2012

Assanidze v. Georgia [GC], no. 71503/01 , ECHR 2004-II

Assenov and Others v. Bulgaria , 28 October 1998, Reports of Judgments and Decisions 1998-VIII

Association "21 December 1989" and Others v. Romania , nos. 33810/07 and 18817/08 , 24 May 2011

Babar Ahmad and Others v. the United Kingdom , nos. 24027/07 and 4 others, 10 April 2012

Banković and Others v. Belgium and Others (dec.) [GC], no. 52207/99 , ECHR 2001-XII

Benzer and Others v. Turkey , no. 23502/06 , 12 November 2013

Çakıcı v. Turkey [GC], no. 23657/94 , ECHR 1999-IV

Cestaro v. Italy , no. 6884/11 , 7 April 2015

Chahal v. the United Kingdom , 15 November 1996, Reports of Judgments and Decisions 1996-V

Creangă v. Romania [GC], no. 29226/03 , 23 February 2012

Cyprus v. Turkey [GC], no. 25781/94 , ECHR 2001-IV

Egmez v. Cyprus , no. 30873/96 , ECHR 2000-XII

El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09 , ECHR 2012

Gäfgen v. Germany [GC], no. 22978/05 , § 91, ECHR 2010

Gentilhomme, Schaff-Benhadji and Zerouki v. France , nos. 48205/99 and 2 others, 14 May 2002

Georgia v. Russia (I) [GC], no. 13255/07 , ECHR 2014 (extracts)

Hirsi Jamaa and Others v. Italy [GC], no. 27765/09 , ECHR 2012

Husayn (Abu Zubaydah) v. Poland , no. 7511/13 , 24 July 2014

Ilaşcu and Others v. Moldova and Russia [GC], no. 48787/99 , ECHR 2004-�VII

İlhan v. Turkey [GC], no. 22277/93 , ECHR 2000-VII

Imakayeva v. Russia , no. 7615/02 , ECHR 2006-XIII (extracts)

Ireland v. the United Kingdom , 18 January 1978, Series A no. 25

Jalloh v. Germany [GC], no. 54810/00 , ECHR 2006-IX

Jeronovičs v. Latvia [GC], no. 44898/10 , 5 July 2016

Kadirova and Others v. Russia , no. 5432/07 , 27 March 2012

Kaya v. Turkey , 19 February 1998, Reports of Judgments and Decisions 1998-I

Krastanov v. Bulgaria , no. 50222/99 , 30 September 2004

Kudła v. Poland [GC], no. 30210/96 , ECHR 2000-XI

Kurt v. Turkey , 25 May 1998, Reports of Judgments and Decisions 1998-III

Labita v. Italy [GC], no. 26772/95 , ECHR 2000-IV

Loizidou v. Turkey (preliminary objections), 23 March 1995, Series A no. 310

Mahmut Kaya v. Turkey , no. 22535/93 , ECHR 2000-III

Mamatkulov and Askarov v. Turkey [GC], nos. 46827/99 and 46951/99 , ECHR 2005-I

Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, ECHR 2014 (extracts)

Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98 , ECHR 2005-VII

Nasr and Ghali v. Italy , no. 44883/09 , 23 February 2016

Öcalan v. Turkey [GC], no. 46221/99 , ECHR 2005-IV

Othman (Abu Qatada) v. the United Kingdom , no. 8139/09 , ECHR 2012 (extracts)

Pretty v. the United Kingdom , no. 2346/02 , ECHR 2002-III

Quinn v. France , 22 March 1995, Series A no. 311

Saadi v. Italy [GC], no. 37201/06 , ECHR 2008

Salman v. Turkey [GC], no. 21986/93 , ECHR 2000-VII

Sargsyan v. Azerbaijan [GC], no. 40167/06 , ECHR 2015

Savriddin Dzhurayev v. Russia , no. 71386/10 , ECHR 2013 (extracts)

Selmouni v. France [GC], no. 25803/94 , ECHR 1999-V

Shamayev and Others v. Georgia and Russia , no. 36378/02 , ECHR 2005-�III

Soering v. the United Kingdom , 7 July 1989, Series A no. 161

Varnava and Others v. Turkey [GC], nos. 16064/90 and 8 others, ECHR 2009

Z. and Others v. the United Kingdom [GC], no. 29392/95 , ECHR 2001-V

[1] . The material has been edited by the Registry and certain editorial corrections made. The review does not affect the content of the documents.

[2] Redaction of the transcripts has been done by the Registry.