Risk of being sentenced to death
IV. RELEVANT DOMESTIC LAW A. Criminal Code 1. Territorial jurisdiction 2. Offence of abuse of power 3. Statute of limitation 4. Protection of secrecy of investigation (offence of disseminating information of criminal investigation) B. Code of Criminal Procedure 1. Prosecution of offences 2. Classified materials C. Laws on classified information and related ordinance 1. The laws on classified information (a) Situation until 2 January 2011 – “the 1999 Act” (b) Situation as from 2 January 2011 – “the 2010 Act” 2. The 2012 Ordinance D. Law on intelligence agencies V. 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 Law Commission, 2001 Articles on Responsibility of States for Internationally Wrongful Acts Article 7 Excess of authority or contravention of instructions Article 14 Extension in time of the breach of an international obligation Article 15 Breach consisting of a composite act Article 16 Aid or assistance in the commission of an internationally wrongful act C. International Covenant on Civil and Political Rights D. The United Nations Torture Convention E. UN General Assembly Resolution 60/147 THE LAW I. THE GOVERNMENT’S PRELIMINARY OBJECTION ON NON-EXHAUSTION OF DOMESTIC REMEDIES A. The parties’ arguments 1. The Government 2. The applicant B. The Court’s assessment II. OBSERVANCE OF ARTICLE 38 OF THE CONVENTION BY POLAND A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Applicable principles deriving from the Court’s case-law (a) General principles (b) Cases where national security or confidentiality concerns are involved 2. Application of the above principles to the present case III. THE COURT’S ESTABLISHMENT OF THE FACTS AND ASSESSMENT OF THE EVIDENCE A. The parties’ positions on the facts and evidence 1. The Government 2. The applicant B. Amnesty International (AI) and the International Commission of Jurists (ICJ) submissions on public knowledge of the US practices in respect of captured terrorist suspects C. The Court’s conclusion on the lack of dispute as to the facts and evidence D. The Court’s assessment of the facts and evidence 1. Applicable principles deriving from the Court’s case-law 2. Preliminary considerations concerning the assessment of the facts and evidence in the present case 3. Assessment of the facts and evidence relevant for the applicant’s allegations concerning his transfer to Poland, secret detention in Poland and his transfer from Polish territory (a) Whether the applicant’s allegations concerning the events preceding his alleged detention in Poland (capture and initial detention from the end of October to 4 December 2002 and transfer from Thailand on 4 December 2002) were proved before the Court (b) Whether the applicant’s allegations concerning his transfer to Poland, secret detention at the “black site” in Stare Kiejkuty and transfer from Poland to other CIA secret detention facilities elsewhere (4/5 December 2002 – 6 June 2003) were proved before the Court 4. Assessment of the facts and evidence relevant for Poland’s alleged knowledge of and complicity in the CIA HVD Programme (a) Special procedure for landings of CIA aircraft in Szymany airport followed by the Polish authorities (b) Special status exemptions, navigation through Poland’s airspace without complete flight plans and validation of false flight plans for the CIA (c) The alleged existence of a “special” bilateral agreement with the CIA and authorisation of Poland’s role in the CIA operations by Polish officials (d) Poland’s lack of cooperation with the international inquiry bodies (e) Informal transatlantic meeting (f) Relations of cooperation between the Polish intelligence and the CIA (g) Circumstances surrounding detainees transfer and reception at the black site (h) Other elements (i) Public knowledge of treatment to which captured terrorist-suspects were subjected in US custody 5. Court’s conclusions as to Poland’s alleged knowledge of and complicity in the CIA HVD Programme IV. RESPONSIBILITY UNDER THE CONVENTION FOR COMPLICITY IN THE HVD PROGRAMME A. The parties’ submissions 1. The Government 2. The applicant B. Third-party intervener – AI/ICJ C. Applicable general principles deriving from the Court’s case-law 1. As regards the State’s responsibility for an applicant’s treatment and detention by foreign officials on its territory 2. As regards the State’s responsibility for an applicant’s removal from its territory 3. Conclusion V. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION A. Procedural aspect of Article 3 1. The parties’ submissions (a) The Government (b) The applicant 2. The third-party interveners (a) Helsinki Foundation for Human Rights (b) The UN Special Rapporteur 3. The Court’s assessment (a) Admissibility (b) Merits B. Substantive aspect of Article 3 1. The parties’ submissions (a) The Government (b) The applicant 2. The Court’s assessment (a) Admissibility (b) Merits VI. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION A. The parties’ submissions 1 The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case VII. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits VIII. ALLEGED VIOLATION OF ARTICLE 13 TAKEN IN CONJUNCTION WITH ARTICLE 3 OF THE CONVENTION A. The parties’ submissions B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case IX. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION A. The parties’ submissions 1. The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable principles deriving from the Court’s case-law (b) Application of the above principles to the present case X. 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 1. The Government 2. The applicant B. The Court’s assessment 1. Admissibility 2. Merits (a) Applicable general principles deriving from the Court’s case-law (b) Application of the above principles to the present case XI. OTHER ALLEGED VIOLATIONS OF THE CONVENTION XII. APPLICATION OF ARTICLE 46 OF THE CONVENTION XIII. APPLICATION OF ARTICLE 41 OF THE CONVENTION A. Damage B. Costs and expenses C. Default interest
The Court held that there had been a violation by Poland of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the Convention by having enabled the CIA to transfer the applicant to the jurisdiction of the military commission and thus exposing him to a foreseeable serious risk that he could be subjected to the death penalty following his trial. Under Article 46 (binding force and execution of judgments) of the Convention, the Court further decided that Poland, in order to comply with its obligations under Articles 2 and 3 of the Convention and Article 1 of Protocol No. 6 to the Convention, was required to seek to remove, as soon as possible, the risk that the applicant could be subjected to the death penalty by seeking assurances from the United States authorities that such penalty would not be imposed on him. The Court also found in this case that Poland had failed to comply with its obligation under Article 38 (obligation to furnish all necessary facilities for the effective conduct of an investigation) of the Convention. It further held that there had been a violation of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention, in both its substantive and procedural aspects, a violation of Article 5 (right to liberty and security), a violation of Article 8 (right to respect for private and family life), a violation of Article 13 (right to an effective remedy) and a violation of Article 6 § 1 (right to a fair trial) of the Convention.