Judgment 6383/17

Applicant nameAL-HAWSAWI
Applicant typeNatural person
Number of applicants 1
Application no. 6383/17
Date 16/01/2024
Judges Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Pauliine Koskelo,
 Lorraine Schembri Orland,
 Diana Sârcu,
 Davor Derenčinović
Institution Court
Type Judgment
Outcome Art. 8 Violation
Reason Fundamentally unlawful
Type of privacy Relational privacy
Keywords Unauthorised black site detention CIA
Facts of the case he case concerns allegations of torture, ill-treatment and unacknowledged, incommunicado detention of Mr al-Hawsawi, one of the CIA’s so-called “high value detainees”, who was captured during the “war on terror” launched by President Bush in the aftermath of the 9/11 attacks and detained secretly in CIA clandestine detention facilities in various countries, allegedly including Lithuania, during the CIA’s extraordinary rendition operations in Europe in 2002-2006. The applicant alleged that as from 17 or 18 February or 6 October 2005, and until 25 March 2006 he had been detained in a CIA secret detention facility in Lithuania. The case raises issues under Article 2 of the Convention and Article 1 of Protocol No. 6, and Articles of 3, 5, 6 § 1, 8 and 13 of the Convention. The applicant further complained that Lithuania had violated his rights under Article 8 by permitting and/or enabling the CIA to subject him to physical abuse and to deprive him of any contact with his family.
AnalysisThe Court observes that in contrast to the case of Abu Zubaydah, where the Government’s objection in effect amounted to denying that the facts adduced by the applicant in respect of Lithuania had actually ever taken place and to challenging the credibility of the evidence produced and relied on by the applicant before the Court, in the present case the Government have not contested the Court’s findings in the above-mentioned case with respect to the existence of the CIA secret detention facility codenamed “Detention Site Violet” in the US Senate Committee Report but have challenged the Court’s assessment regarding the authorities’ knowledge of and complicity in the CIA operations on its territory. However, the Lithuanian State’s responsibility under the Convention is not only connected to the issue of whether its authorities knew, or ought to have known of the nature and purposes of the CIA’s activities on its territory at the material time, that is between 17 February 2005 and 25 March 2006, but also to the issue of whether the facts alleged by the applicant actually took place on Lithuanian territory. Consequently, the Court is required first to establish, in the light of the evidence in its possession, whether the events complained of actually occurred on Lithuanian territory and, if so, whether they are attributable to the Lithuanian State. The Court will therefore rule on the Government’s objection in the light of its findings regarding the facts of the case .

As to Article 8 ECHR, the Court notes that private life extends to situations of deprivation of liberty and also protects a right to personal development, the right to establish and develop relationships with other human beings and the outside world. A person should not be treated in a way that causes a loss of dignity, as “the very essence of the Convention is respect for human dignity and human freedom”. Furthermore, the mutual enjoyment by members of a family of each other’s company constitutes a fundamental element of family. In that context, the Court would also reiterate that an essential object of Article 8 is to protect the individual against arbitrary interference by the public authorities.  Having regard to its conclusions concerning the respondent State’s responsibility under Articles 3 and 5 of the Convention, the Court is of the view that Lithuania’s actions and omissions in respect of the applicant’s detention and transfer likewise engaged its responsibility under Article 8 of the Convention. Considering that the interference with the applicant’s right to respect for his private and family life occurred in the context of the imposition of fundamentally unlawful, undisclosed detention, it must be regarded as not “in accordance with the law” and as inherently lacking any conceivable justification under paragraph 2 of that Article.
Other Article violation? Yes, 2, 3, 5, 6 and 13 ECHR and P6-1
Damage awarded  that the respondent State is to pay, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, the following amounts:
(i) to the applicant EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable on that amount, in respect of non–pecuniary damage;
(ii) to REDRESS EUR 30,000 (thirty thousand euros), plus any tax that may be chargeable on that amount, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
Documents Judgment