The Case of Kairat Bektenov and others
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The European Court of Human Rights held that Macedonia violated Articles 3, 5, 8 and 13 of the European Convention of Human Rights (ECHR) when it unlawfully detained a German national, subjected him to physical abuse and interrogation, handed him over to the U.S. for continued mistreatment, and refused to carry out a proper investigation into the circumstances.
The Court reasoned that the Macedonian authorities had subjected the Applicant to inhuman and degrading treatment by holding him in a hotel in a state of stress and anguish for the purpose of extracting a confession and were “directly responsible” for the CIA’s subsequent torture of the Applicant because its officials had “actively facilitated and failed to prevent that operations”. Further, because the Macedonian authorities “actively facilitated his subsequent detention in Afghanistan,” Macedonia was responsible for the entirety of Mr. El-Masri’s detention, both in Skopje and then in Afghanistan.
In considering the breaches of Articles 3 and 5, the Court said that these included failures to carry out an effective investigation of the Applicant’s allegations. It reasoned that the prosecuting authorities of the State should have endeavoured to undertake an adequate investigation and that their failure to do this had an impact on the right to truth about the circumstances of the case, rendering the case important not only for the Applicant and his family, but also for other victims of similar crimes and the general public who had the right to know what had happened.
This case analysis was contributed by Right2Info.org.
On December 31 2003 German citizen Khaled El-Masri travelled from Ulm, Germany, to Macedonia for vacation. At the Serbia-Macedonia border, a border official interrogated El-Masri for seven hours before taking him to a hotel in Skopje, Macedonia, where he was confined for the next 23 days. Over the course of his confinement, El-Masri was “interrogated repeatedly,” threatened with bodily harm if he attempted to leave, and pressured to confess that he was a member of Al-Qaeda. His interrogators ignored his requests to speak to German officials. After 23 days, El-Masri was instructed to say on film “that he had been treated well, that he had not been harmed in any way and that he would shortly be flown back to Germany”. He was then handcuffed, blindfolded, and transported to Skopje airport .
At the airport, he was taken to a room where he was “beaten severely from all sides,” had his clothing and underwear forcibly removed and was thrown to the floor. At one point, El-Masri saw seven to eight men dressed in black with black ski masks, whom he later alleged to be a special CIA rendition team. They placed shackles around his ankles, chains around his wrists, and a bag over his head that made breathing difficult.
El-Masri was then transported to what he later deduced to be Afghanistan, where he remained for the next four months. El-Masri remained in a “small, dirty, dark concrete cell” without a bed, where he was “kicked,” “beaten,” and “stepped upon”. He was interrogated on “three or four occasions,” and his “repeated requests to meet with a representative of the German Government were ignored”. El-Masri was eventually blindfolded, taken from the cell to a plane, and upon landing given his passport and belongings, and “directed […] to walk down [a] path without turning back”. He was then met by three armed Albanian officials, taken to Tirana airport and put on a plane to Germany.
On April 3 2006 in response to a request from the Secretary General of the Council or Europe, Macedonia claimed that El-Masri was interrogated upon arrival at the Macedonian border on the ground of “suspect[ed] possession of a forged travel document,” but released on the same day. Macedonian authorities failed to mention that the Macedonian intelligence service “routinely consults” with the U.S.’ Central Intelligence Agency (CIA), transmitted “a full description” of El-Masri to the CIA, and was “requested to assist in securing and detaining El-Masri until he could be handed over to the CIA for transfer”.
Several inquiries into allegations of extraordinary renditions unearthed evidence in support of El-Masri’s claims and laid bare inconsistencies in the government’s version of events. On March 4 2010 the Macedonian Minister of the Interior at the time of El-Masri’s initial detainment in Macedonia (“H.K.”) gave a written statement confirming that Macedonian intelligence had communicated with the CIA about El-Masri.
The Court examined violations of Articles 3 (prohibition of torture), 5 (prohibition against arbitrary detention), 8 (protection of private and family life), 13 (right to effective remedy) and 10 (freedom of expression).
Article 3 (prohibition of torture)
El-Masri alleged that “his unlawful solitary incommunicado detention and interrogation for 23 days in the hotel, combined with repeated threats and prolonged uncertainty as to his fate” violated Article 3 of the ECHR. He also argued Article 3 violations for (1) “the treatment to which he had been subjected during his transfer into the CIA’s custody at Skopje Airport,” because Macedonian officials “had actively facilitated and failed to prevent that operation”; (2) the failure to “assess the risk of his ill-treatment in Afghanistan and to obtain appropriate diplomatic assurances” (para. 171); and (3) the government’s failure “to conduct a prompt, impartial and effective investigation”.
The Court found that Macedonia had violated Article 3 in several respects. Procedurally, the summary investigation Macedonia carried out could not be regarded as “an effective one capable of leading to the identification and punishment of those responsible for the alleged events and of establishing the truth”. Given the “complexity of the case, the serious nature of the alleged violations and the available material,” Macedonia should have but failed to conduct an adequate and independent investigation (para. 189). This in turn violated the right to truth owed to El-Masri, his family, and “victims of similar crimes and the general public”.
Substantively, Macedonia’s ill-treatment of El-Masri in the Skopje hotel and at Skopje Airport violated Article 3. El-Masri’s treatment in the hotel, though devoid of physical force, nonetheless created “a state of anguish and stress” and was “intentionally meted out […] with the aim of extracting a confession”. This amounted to inhuman and degrading treatment. As to El-Masri’s treatment by the CIA at Skopje Airport, the Court found that it amounted to torture, as extreme physical force was inflicted upon El-Masri “with premeditation”. Macedonia was “directly responsible” for this treatment because its officials “actively facilitated the treatment and then failed to take any measures that might have been necessary […] to prevent it from occurring”.
Finally, the Court found that the removal of El-Masri violated Article 3. The evidence “suggests that the Macedonian authorities had knowledge of [El-Masri’s] destination” and that, given the extensive reports about U.S. interrogation methods, they also “knew or ought to have known […] that there was a real risk that the applicant would be subjected” to torture or inhuman or degrading treatment. Macedonia did not even demonstrate that El-Masri’s transfer to the CIA was “pursuant to a legitimate request for […] extradition”, nor did it “seek any assurances from the U.S. authorities to avert the risk” of ill treatment (para. 219). Thus, the removal itself also violated Article 3.
Article 5 (prohibition against arbitrary detention)
El-Masri was held in the hotel in Skopje for 23 days “in complete disregard of the safeguards enshrined in Article 5 and this constitutes a particularly grave violation … of Article 5”. Because the Macedonian authorities “actively facilitated his subsequent detention in Afghanistan,” Macedonia was responsible for the entirety of Mr. El-Masri’s detention, both in Skopje and then in Afghanistan. His abduction and detention amounted to “enforced disappearance”, even though temporary. The fact that he was suspected of terrorist offences was irrelevant: “although the investigation of terrorist offences undoubtedly presents the authorities with special problems, that does not mean that the authorities have carte blanche … to arrest suspects and detain them in police custody, free from effective control by the domestic courts” and the Strasbourg Court itself. Given that El-Masri’s detention in the Skopje hotel and at the Skopje Airport was entirely unauthorized, unsubstantiated by any recorded custody, and undocumented, the Court found a violation of Article 5.
Article 8 (protection of private and family life)
El-Masri complained that “his secret and extrajudicial abduction and arbitrary detention had violated his rights under Article 8”. Since the State’s actions were not “in accordance with the law,” the Court found that the deprivation of “mutual enjoyment of members of a family of each other’s company” violated a “fundamental element of family life” .
Article 13 (right to effective remedy)
El-Masri claimed that the lack of an effective remedy in Macedonia’s domestic system constituted a violation of Article 13. The Court agreed, concluding that El-Masri should have been able to avail himself of effective and practical remedies capable of leading to the identification and punishment of those responsible and to an award of compensation and that “the ineffectiveness of the criminal investigation undermined the effectiveness of any other remedy”.
Article 10 (right to freedom of expression)
El-Masri complained that Macedonia violated his Article 10 “right to be informed of the truth regarding the circumstances that had led to the alleged violations of his Convention rights”. The Court found that, since the Article 10 complaint “overlaps with the merits of [El-Masri’s] complaints under Article 3″ where the Court found the inadequate character of Macedonia’s investigation in violation of the right to the truth, the complaint was “manifestly ill-founded”.
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Articles 4, 7, 9
Articles 1, 2, 3, 4
Case significance refers to how influential the case is and how its significance changes over time.
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