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 27 March to 4 December 2002 and transfer from Thailand on 4 December 2002) were proved before the Court
401. The Court notes that the CIA official documents clearly confirm the date of the applicant’s capture – 27 March 2002 – the event, which, as stated in the 2004 CIA Report – “accelerated CIA’s development of an interrogation program” (see paragraph 84 above).
Those documents also confirm that by November 2002 the Agency had the applicant and Mr Al Nashiri, 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 and that their interrogations were videotaped. The applicant was first to have been detained and interrogated there, Mr Al Nashiri was brought to that facility as a “second prisoner” on
15 November 2002. The interrogation of Mr Al Nashiri “continued through 4 December 2002” (see paragraphs 84-87 above).
Those documents also attest to the fact that as from 15 November 2002 the applicant and Mr Al Nashiri were held in the same detention facility, that they were interrogated by apparently the same team of “psychologist/interrogators”, that their interrogations were videotaped and that the series of Mr Al Nashiri’s enhanced interrogations, including the so- called “waterboarding”, “continued through 4 December 2002” (see also Al Nashiri, cited above, § 401).
402. The CIA material further confirm – in the cables of 3 and 9 December 2002 – that this specific detention facility was closed following an inventory of the videotapes recording the enhanced interrogations of Mr Al Nashiri’s and Mr Abu Zubaydah’s. The inventory was carried out on 3 December 2002. No CIA cables from that location were sent to the Headquarters after 4 December 2002 (see paragraphs 90-91 above). The 2009 DOJ Report states that, after the enhanced interrogations of Mr Al Nashiri which, as noted above, continued at that black site until 4 December 2002, both he and Mr Abu Zubaydah were moved to “another CIA black site”. The same fact is mentioned in the 2004 CIA Report (see paragraph 89 above).
403. Senator Marty and Mr J.G.S., the experts who gave evidence to the Court, in their presentation at the fact-finding hearing explained in detail the above sequence of events with reference to documentary evidence available in the public domain, in particular the material released by the CIA. They identified the CIA detention facility in which the applicant and Mr Al Nashiri had been held during the period under consideration as the one known under the codename “Cat’s Eye” or “Catseye” and located in Bangkok. They conclusively confirmed that the closure of the site and interruption of Mr Al Nashiri’s interrogation schedule on 4 December 2002 indicated the date of his physical transfer by means of the HVD rendition out of the black site in Thailand to another black site (see paragraphs 308-309 above).
404. In the light of the above first-hand CIA documentary evidence and clear and convincing expert evidence, the Court finds established beyond reasonable doubt that the applicant, following his capture on 27 March 2002, was detained in the CIA detention facility in Bangkok from an unknown date following his capture to 4 December 2002, that Mr Al Nashiri was also held in the same facility from 15 November 2002 to 4 December 2002 and that they were both moved together to “another CIA black site” on 4 December 2002 (see also Al Nashiri, cited above, § 404).
(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 – 22 September 2003) were proved before the Court
405. It is alleged that on 5 December 2002 the applicant, together with Mr Al Nashiri, had been transferred by the CIA under the HVD Programme from Thailand to Poland on a CIA contracted aircraft, registered as N63MU with the US Federal Aviation Authority. The flight flew on 4 December 2002 from Bangkok via Dubai and landed at Szymany airport on 5 December 2002. The applicant was then secretly detained in the Polish intelligence training base at Stare Kiejkuty (see paragraphs 92-107 above).
It is further alleged that during his undisclosed detention in Poland the applicant was subjected to various forms of ill-treatment and abuse and deprived of any contact with his family. He was held in Poland until 22 September 2003. On that date he was transferred by means of extraordinary rendition from Polish territory, on a Boeing 737 registered as N313P, to other CIA secret detention facilities elsewhere (see paragraphs 109-117 above).
(i) Transfers and secret detention
406. The Court notes that the fact that after 4 December 2002 the applicant and Mr Al Nashiri were transferred together to the same detention facility is conclusively confirmed in paragraph 91 of the 2004 CIA Report. The paragraph states that the same “interrogation team” was “to interrogate Al Nashiri and debrief Abu Zubaydah” and that “the interrogation team continued EITs on Al Nashiri for two weeks in December 2002” (see paragraph 107 above).
407. As regards the aircraft indicated by the applicant, the Court observes that there is abundant evidence identifying them as rendition planes used by the CIA for the transportation of detainees under the HVD Programme. That evidence includes data from multiple sources, such as flight plan messages by Eurocontrol and information provided by the Polish Border Guard and the Polish Air Navigation Services Agency (“PANSA”), which was released and subsequently analysed in depth in the course of the international inquiries concerning the CIA secret detentions and renditions (see paragraphs 95-96, 252, 265, 281-286, 310 and 312 above).
408. In the light of that accumulated evidence, there can be no doubt that:
(1) the aircraft N63MU, a Gulfstream jet with capacity for 12 passengers, flew on 4 December 2002 from Bangkok via Dubai to Szymany and landed there on 5 December 2002 at 14:56. The Polish Border Guard’s official documents recorded that on arrival there were eight passengers and four crew and that the plane departed from Szymany on the same day at 15:43 with no passengers and four crew;
(2) the aircraft N313P, a Boeing 737, landed in Szymany en route from Kabul, Afghanistan on 22 September 2003. The hours of the arrival and landing were recorded by PANSA as 18:50 and 19:56 respectively. A hand- written log of take-offs and landings at Szymany airport recorded that N313P arrived in Szymany on 22 September 2003 at 21:00 (local time) and departed at 21:57 (local time). The Polish Border Guard’s official documents recorded that on arrival there were no passengers and seven crew and on departure there were five passengers and seven crew.
409. As regards transfers of High-Value Detainees between CIA black sites, the CIA declassified documents give, in meticulous detail, a first-hand account of the standard procedures applied to them. The transfer procedure is also related in the 2007 ICRC Report, which compiled consistent and explicit descriptions given by the fourteen High-Value Detainees, including the applicant (see paragraphs 62 and 276 above).
Nothing has been put before the Court to the effect that upon and during his transfer to and from “another black site” on, respectively, 4-5 December 2002 and 22 September 2003, the applicant could have been subjected to less harsh treatment than that defined in the strict and detailed rules applied by the CIA as a matter of routine. It accordingly finds it established beyond reasonable doubt (see paragraph 394 above) that for the purposes of his transfers on 4/5 December 2002 and 22 September 2003:
1) the applicant was photographed both clothed and naked prior to and again after the transfer;
2) he underwent a rectal examination and was made to wear a diaper and dressed in a tracksuit;
3) earphones were placed over his ears, through which loud music was sometimes played;
4) he was blindfolded with at least a cloth tied around the head and black goggles;
5) he was shackled by his hands and feet, and was transported to the airport by road and loaded onto the plane ;
6) he was transported on the plane either in a reclined sitting position with his hands shackled in front of him or lying flat on the floor of the plane with his hands handcuffed behind his back;
7) during the journey he was not allowed to go to the toilet and, if necessary, was obliged to urinate or defecate into the diaper.
In that regard, the Court would also note that a strikingly similar account of his transfers in CIA custody was given by the applicant in El-Masri (see El-Masri, cited above, § 205).
410. As regards the applicant’s actual presence in Poland, the Court takes due note of the fact that there is no direct evidence that it was the applicant who was transported on board the N63MU flight from Bangkok to Szymany on 5 December 2002 or that he was then taken from Szymany elsewhere on board N313P on 22 September 2003.
The applicant, who for years on end was held in detention conditions specifically designed to isolate and disorientate a person by transfers to unknown locations, even if he had been enabled to testify before the Court, would not be able to say where he was detained. Nor can it be reasonably expected that he will ever on his own be able to identify the places in which he was held. Also, having regard to the very nature and extreme secrecy of the CIA operations in the course of the “war on terror” and to how the declassification of crucial material demonstrating the CIA activities at that time currently stands – this being a matter of common knowledge – , no such direct evidence will soon be forthcoming in this regard.
411. No trace of the applicant can, or will, be found in any official records in Poland because his presence on the plane and on Polish territory was, by the very nature of the rendition operations, purposefully not to be recorded. As unequivocally confirmed by the expert, the Border Guard’s records showing numbers of passengers and crew arriving and departing on the rendition planes in question “neither include[d], nor purport[ed] to include detainees who were brought into or out of Polish territory involuntarily, by means of clandestine HVD renditions” and those detainees “were never listed among the persons on board filed vis-à-vis any official institution” (see paragraph 322 above).
412. In view of the foregoing, in order to ascertain whether or not it can be concluded that the applicant was detained in Poland at the relevant time, the Court has taken into account all the facts that have already been found established beyond reasonable doubt (see paragraphs 401-404 above) and analysed other material in its possession, including, in particular, the expert evidence reconstructing the chronology of rendition and detention of the applicant and Mr Al Nashiri in 2002-2003 (see paragraphs 305-312 above).
413. It has already been established that on 4 December 2002 the applicant was transferred from the black site in Bangkok together with Mr Al Nashiri and that they were subsequently detained in the same CIA detention facility (see paragraph 404 above) The date of the transfer coincides exactly with the path followed by the N63MU, which took off from Bangkok on 4 December 2002 and then, after the stopover in Dubai, arrived in Szymany on 5 December 2002 (see paragraphs 93-96 and 408 above).
The flight was the subject of protracted and intense investigations by the experts who gave evidence to the Court, who had investigated it “in its most intricate detail from its planning and authorisation to its execution through multiple, different corporate shells”. They found no alternative explanation for its landing in Szymany other than the transfer of the applicant and Mr Al Nashiri from Bangkok to “another black site”, which they categorically identified as the one codenamed “Quartz” and located at the Polish intelligence training base in Stare Kiejkuty near Szymany (see paragraphs 310-311 and 321 above).
414. The Court notes that the Polish Government have offered no explanation for the nature of, the reasons for, or the purposes of the landing of the N63MU on their territory on 5 December 2002, a plane which in all the relevant reliable and thorough international inquiries was conclusively identified as the rendition aircraft used for transportation of High-Value Detainees in CIA custody at the material time (see paragraphs 93-96, 248, 265, 281-285, 310, 312 and 321 above).
Nor have they explained the reasons for the subsequent series of landings of the CIA rendition aircraft (see paragraph 286 above). The landing of N63MU on 5 December 2002 was followed by five further landings of the N379P (the “Guantánamo express”), the most notorious CIA rendition plane. One of those landings took place on 6 June 2003 – the date indicated by Mr Al Nashiri as that of his transfer from Poland and conclusively confirmed by the experts as that on which he had been transferred out of Poland (see paragraph 311 above). The series ended with the landing of N313P on 22 September 2003 – the date indicated by the applicant for his transfer from Poland, confirmed by the experts as the date of his transfer out of Poland and identified by them as the date on which the black site “Quartz” in Poland had been closed (see paragraph 312 above and also Al Nashiri, cited above, § 414). Indeed, no other CIA-associated aircraft appeared in Szymany after that date (see paragraph 286 above).
415. In view of the lack of any explanation by the Government as to how the events in the present case occurred and their refusal to disclose to the Court documents necessary for its examination of the case (see paragraphs 368-369 above), the Court will draw inferences from the evidence before it and from the Government’s conduct.
Consequently, on the basis of unrebutted facts and in the light of all the relevant documentary material in its possession and the coherent, clear and categorical expert evidence explaining in detail the chronology of the events occurring in the applicant’s case between 4-5 December 2002 and 22 September 2003, the Court finds that the applicant’s allegations to the effect that during that time he was detained in Poland are sufficiently convincing.
(ii) The applicant’s treatment in CIA custody in Poland
416. Lastly, as regards the applicant’s treatment in CIA custody over the period under consideration, in contrast to Mr Al Nashiri whose treatment in CIA custody in the relevant period is described at least partly in the CIA documents (see paragraph 107 above and Al Nashiri, cited above, §§ 416-417), the unredacted sections of those documents give very sparse information about the applicant’s situation. The 2004 CIA Report merely states that in December 2002 the purpose of the interrogation team assigned to the black site in which the applicant was detained was to “interrogate Al Nashiri and debrief Abu Zubaydah“ (see paragraph 107 above).
As confirmed by the experts, upon the point of his transfer to Poland, the applicant was described as having been compliant and was undergoing a process known as “debriefing”, which was interviewing for the provision of intelligence and information rather being subjected to the EITs of a more aggressive or harsh nature. In their view, it was not known what techniques were applied to the applicant in Poland (see paragraph 311 above).
The 2004 CIA Report, with reference to the applicant’s detention between August 2002 and 30 April 2003, that is, during the period which partly overlaps with his detention in Poland, seems to confirm that the applicant at some point became “compliant”. It states that after the applicant was subjected to the waterboard “at least 83 times during August 2002” and during the period between the end of the use of the waterboard and 30 April 2003 he “provided information”. In that respect, the document speaks of the applicant’s “increased production”, which appears to have meant that the aims of the enhanced interrogation had been achieved, although the authors of the report expressed doubts as to whether his “compliance” should be attributed to the use of waterboard or the length of his – undisclosed – detention (see paragraph 106 above). The 2009 DOJ Report also refers to the fact that at some point the use of the waterboard on the applicant was discontinued (see paragraph 88 above).
417. In the Court’s view, the above elements confirm that the use of this particular interrogation technique stopped but this left open the application of other EITs on the applicant throughout his undisclosed detention, including in the period between 5 December 2002 and 22 September 2003 in Poland.
Furthermore, the Court finds it inconceivable that during the applicant’s detention in Poland any of the standard methods applied by the CIA to persons detained under the HVD Programme as a matter of routine were lifted in respect of him on account of his “compliance”.
418. It is to be recalled that the applicant was the first High-Value Detainee for whom the EITs were specifically designed by the CIA and on whom they were tested before ever being applied to other captured terrorist suspects as from November 2002 (see paragraphs 49 and 54-59 above). Having regard to the fact that the CIA “legally sanctioned interrogation techniques” encompassed a variety of measures, ranging from “standard” to “enhanced” and that the CIA applied to each and every detainee the same “standard procedures and treatment” (see paragraphs 53 and 60-68 above), the Court finds it established beyond reasonable doubt that the treatment to which the applicant was subjected in CIA custody in Poland must have included the elements defined in the CIA documents as those routinely used in respect of High-Value Detainees (see paragraphs 51-68, 98 and 102-105 above).
(iii) Court’s conclusion
419. 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 Al Nashiri arrived in Szymany on board the CIA rendition aircraft N63MU;
(2) from 5 December 2002 to 22 September 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 “debriefed” by the CIA interrogation team and subjected to the standard procedures and treatment routinely applied to High-Value Detainees in the CIA custody, as defined in the relevant CIA documents;
(4) on 22 September 2003 the applicant was transferred by the CIA from Poland to another CIA secret detention facility elsewhere on board the rendition aircraft N313P.
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
420. Several sources of evidence obtained by the Court confirm that the Polish authorities followed a special procedure for the landing of CIA rendition flights in Szymany.
That procedure was related before the TDIP by an eye-witness, a certain Ms M.P., who had been the manager of Szymany airport at the material time (see paragraphs 287-296 above). On the basis of her detailed account and statements from other persons, including the former director of Szymany airport and the former Chairman of the Board of that airport, the summary