The relevance of this judgment for victims of armed drones is explained at the end of the text below.

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Court: European Court of Human Rights

Type of decision: Judgment

Date judgment: 13 December 2012

Application no.: 39630/09

Area of jurisdiction: –

Claim: Violation of Articles 3, 5 and 8 of the European Convention on Human Rights (ECHR)

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Principle legal argument(s):

Article 3:

Macedonian state is responsible for El-Masri’s ill-treatment while detained in the hotel in Skopje, for the failure to prevent him from being ill-treated by the CIA rendition team at Skopje Airport, for his ill-treatment during his detention in Afghanistan by having knowingly transferred him into the custody of US agents even though there had been substantial grounds for believing that there was a real risk of such ill-treatment, and for the ineffective investigation of the Macedonian authorities.

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Article 5:

Macedonian state is responsible for El-Masri’s unlawful detention, for being kept incommunicado, without any   arrest warrant having been issued, and for not bringing him before a judge. Furthermore, the Macedonian authorities contravened their procedural obligation to conduct a prompt and effective investigation into his  allegations.

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Article 8:

El-Masri’s abduction was secret and extrajudicial and his detention was arbitrary.

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Type of reparation sought:

(1) 300,000 euros (EUR)   nonpecuniary damage for the suffering, anguish and mental breakdown linked to his ill-treatment, unacknowledged detention, uncertainty about his fate, the refusal of the Macedonian government to acknowledge the truth and the impossibility of restoring his reputation.

(2) The Court order the Macedonian state to conduct an effective and thorough investigation into the facts of his case.

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On 31 December 2003, Khaled El-Masri, born in Kuwait to Lebanese parents and a German national, travelled by bus from Ulm, Germany to Skopje in Macedonia. At arrival at the Serbian/Macedonian border, Macedonian law enforcement officials took his passport and kept him for several hours before he was transferred to a hotel in Skopje, where he was detained without charge for 23 days. Whilst repeatedly interrogated on suspicion of Al Qaeda membership, he was denied to see a lawyer, translator, or German consular official. In January 2004, El-Masri was transferred to Skopje Airport and handed over into the custody of a United States CIA “rendition” team that severely ill-treated him. Subsequently, and in the context of the U.S. “Extraordinary Rendition” program, El-Masri was put on a plane to Afghanistan where, again, he was kept incommunicado with the outside world in degrading conditions, while at no point criminal charges were filed against him. Four months later, in May 2004, apparently after the CIA found out that they were mistaken about El-Masri’s identity, he was flown on board a CIA- plane into Albania where he was released and from where he returned to Germany.

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In 2009, El-Masri lodged a complaint against the former Yugoslav Republic of Macedonia before the European Court of Human Rights (ECtHR), claiming that he had been subjected to extraordinary rendition by CIA agents assisted, to a large extent, by Macedonian agents in violation of his rights under Articles 3, 5, and 8 of the European Convention on Human Rights (ECHR). The Macedonian government denied any involvement of State agents in the events complained of.

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Violation of Article 3 – Prohibition of Torture

Procedural aspects Article 3

El-Masri holds the Macedonian state responsible (i) for his ill-treatment while detained in the hotel in Skopje, (ii) for the failure to prevent him from being ill-treated by the CIA rendition team at Skopje Airport, (iii) for his ill-treatment during his detention in Afghanistan by having knowingly transferred him into the custody of US agents even though there had been substantial grounds for believing that there was a real risk of such ill-treatment, and (iv) for the ineffective investigation by the Macedonian authorities – the internal inquiry into the El-Masri’s allegations of ill-treatment in 2005 was in breach of the procedural requirements of Article 3 (para. 168). As regards the latter, the ECtHR sets out the general principles and conditions for the obligation to conduct prompt, effective and impartial investigations into an alleged breach of Article 3 (paras. 182-185) and finds that the Macedonian authorities, rejecting El-Masri’s complaint on the sole basis of information provided by the Macedonian Ministry of the Interior, undertook inadequate investigations into the alleged events. In this case, the court seems to consider the considerable circumstantial evidence available at the time of the submission of the complaint, the complexity of the case and the seriousness of the alleged violations, as aggravating circumstances in relation to the Macedonian authorities’ obligation to properly investigate the matter (para. 189).

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‍Effective investigation serves right to the truth

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Importantly, the ECtHR emphasises the negative impact of an inadequate investigation on the right to the truth, not only for El-Masri and his family “but also for other victims of similar crimes and the general public, who had the right to know what had happened”(para. 191). In this context, the ECtHR points to the attitude of States obstructing truth-finding by invoking “State secrets” so as to avoid providing explanations to parliamentary bodies or to prevent judicial authorities from adjudicating alleged crimes – an attitude detrimental to accountability. While noting that public trust in the rule of law is served by an effective and transparent investigation into alleged violations of human rights, the ECtHR also underlines that justice for victims of such violations precludes impunity (para. 194).

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Substantive aspects Article 3

As regards the substantive aspects of Article 3, the Court concludes that the Macedonian state is responsible for El-Masri’s inhumane and degrading treatment (i) while in the hotel, ii) while under torture by CIA Agents at Skopje Airport and iii) by having transferred the applicant into the custody of the US authorities, thereby exposing him to the risk of further ill-treatment contrary to Article 3 ECHR (para. 223).

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Violation of Article 5 – Right to liberty & security

El-Masri holds the Macedonian state responsible for his unlawful detention, for being kept incommunicado, without any arrest warrant having been issued, and complains that he had never been brought before a judge, in violation of Article 5 ECHR. He also alleges that the Macedonian authorities contravened their procedural obligation to conduct a prompt and effective investigation into his allegations under Article 5 ECHR (para. 224).

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Having noted that under Article 5, states are obliged to take effective measures to safeguard a person in their custody from the risk of disappearance and to conduct a prompt effective investigation whenever such situation does occur, the Court rules that the applicant’s abduction and detention amount to “enforced disappearance” for which the Macedonian government is responsible during the entireperiod of his captivity. This includes the period during which El-Masri was detained in Afghanistan by the CIA rendition team (paras. 235,240), on the basis of the fact that a state party to the ECHR violates Article 5 if it removes an applicant to a state where he or she will be at real risk of a flagrant breach of that Article, a risk that should have been clear to the Macedonian authorities when handing El-Masri over into the custody of the US authorities (para. 239).

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Having already established that there had been no effective investigation conducted into the allegations of arbitrary detention, the ECtHR accordingly finds that the Macedonian state has also violated Article 5 ECHR in its procedural aspect (paras. 242-243).

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Violation of Article 8 – Respect for family & private life

El-Masri claims that his secret and extrajudicial abduction and arbitrary detention had violated his rights under Article 8.

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The ECtHR explains that “private life” must be defined broadly and may cover the moral and physical integrity of persons, including in situations of deprivation of liberty (para. 248), and that a person should always be treated with human dignity. As regards “family life”, the Court confirms that an intrinsic element thereof is that family members can mutually enjoy each other’s company. The Court explains that Article 8 aims at protecting the individual against arbitrary interference by state authorities (para. 248), and concludes that the established evidence shows that the Macedonian authorities violated El-Masri’s right to respect for his private and family life under Article 8 ECHR.

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Reparations

The applicant claimed 300,000 euros (EUR) in respect of nonpecuniary damage and requested the Court to order the Macedonian government to conduct an effective and thorough investigation into the facts of his case. Responding to his claim for reparation, the ECtHR considers that El-Masri suffered non-pecuniary damage resulting from the extremely serious violations established and awards him 60,000 EUR, plus any tax that may be chargeable on that amount (paras. 269-270).

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Epilogue: Judgment’s relevance for victims of armed drones

This ruling may be of particular interest to victims seeking redress for harm/losses caused by States that deploy or facilitate the deployment of armed drones. The judgment emphatically reaffirms a state’s duty to conduct adequate investigations into alleged human rights violations, ex post facto (after an event occurred). The ECtHR clearly rules that state authorities cannot, in their investigative efforts, suffice by relying only on one source: investigations must be capable of leading to the identification and punishment of those responsible. Otherwise, the general legal prohibition of human rights infringements would be ineffective and incapable of safeguarding against impunity.

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In reality however, covert drone bombings are often marked by the absence of any investigation or effort to identify who is responsible for the attack, making prosecution or punishment in the event of unlawful conduct impossible. Victims suing the Unites States, for example, for harm done by armed drones operations, have been thwarted by the doctrine of “State Secrets.” This is clearly contrary to states’ obligations under international law. In so far as investigations have been conducted following drone strikes in other contexts, the facts established often vary depending on the reporting party: states tend to report lower numbers of victims than NGO’s or other witnesses and monitors. This judgement may lend support to victims bringing drones-related complaints before the European Court.

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The Court also found that a state party to the ECHR violates Article 5 if it removes an applicant to a State where he or she was at real risk of a flagrant breach of that Article. Possibly, this ruling could be applied to the situation in which one state facilitates the use of armed drones by another, e.g. by providing information as to the whereabouts of persons, when there is astrong risk that the facilitated state would use the information for unlawful (covert) armed drones bombings.