Global Freedom of Expression

Español

El-Masri v. The Former Yugoslav Republic of Macedonia

Closed Expands Expression

Key Details

  • Mode of Expression
    Non-verbal Expression
  • Date of Decision
    December 13, 2012
  • Outcome
    ECtHR, Article 8 Violation, ECtHR - non Freedom of Expression and Information article violations
  • Case Number
    39630/09
  • Region & Country
    Macedonia, the Former Yugoslav Republic of, Europe and Central Asia
  • Judicial Body
    European Court of Human Rights (ECtHR)
  • Type of Law
    International/Regional Human Rights Law
  • Themes
    National Security
  • Tags
    Human Rights, Privacy, Truth

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

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.


Facts

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.


Decision Overview

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”.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

Global Perspective

Quick Info

Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Related International and/or regional laws

  • ECHR, art. 2
  • ECHR, art. 3
  • ECHR, art. 5
  • ECHR, art. 8
  • ECHR, art. 10
  • ECHR, art. 13
  • ECHR, art. 14
  • ICCPR

    Articles 4, 7, 9

  • United Nations Vienna Convention on Consular Relations

    Article 36

  • United Nations Manual on the Investigation and Documentation of Torture/Istanbul Protocol
  • United Nations International Convention for the Protection of All Persons from Enforced Disappearance

    Articles 1, 2, 3, 4

  • International Law Commission, 2001 Responsibility of States for Internationally Wrongful Acts
  • United Nations General Assembly Report on Torture UN Doc. A/57/173 July 2 2002
  • United Nations Human Rights Council, Resolution 9/11, Right to the Truth, adopted September 18 2008
  • United Nations Human Rights Council, Resolution 12/12: Right to the Truth, adopted October 1 2009
  • United Nations Special Rapporteur Report on Human Rights while Countering Terrorism UN Doc. A/HRC/10/3 (2009)
  • CoE: Guidelines on Eradicating Impunity for Serious Human Rights Violations, March 30 2011
  • European Commission for Democracy through Law (Venice Commission), Opinion on CoE Member States' Obligations regarding Detention Facilities & Transport of Prisoners No. 363/2005
  • Council of Europe Parliamentary Assembly, res. 1463 (2005)
  • Council of Europe Parliamentary Assembly, res. 1433 (2005)
  • ECtHR, Bayram and Yıldırım v. Turkey, App. No. 38587/97 (2002)
  • ECtHR, Artyomov v. Russia, App. No. 14146/02 (2010)
  • ECtHR, Nasirkhayeva v. Russia (dec.), App. No. 1721/07 (2011)
  • ECtHR, Bulut and Yavuz v. Turkey (dec.), App. No. 73065/01 (2002)
  • ECtHR, Varnava and Others v. Turkey [GC], App. Nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 (2009)
  • ECtHR, Sabri Güneş v. Turkey [GC], App. No. 27396/06 (2012)
  • ECtHR, Walker v. the United Kingdom (dec.), App. No. 34979/97 (2000)
  • ECtHR, Dennis and Others v. the United Kingdom (dec.), App. No. 76573/01 (2002)
  • ECtHR, Edwards v. the United Kingdom (dec.), App. No. 46477/99 (2001)
  • ECtHR, Abuyeva and Others v. Russia, App. No. 27065/05 (2010).
  • ECtHR, Jasar v. the former Yugoslav Republic of Macedonia, App. No. 69908/01 (2007)
  • ECtHR, Trajkoski v. the former Yugoslav Republic of Macedonia, App. No. 13191/02 (2008)
  • ECtHR, Dzeladinov and Others v. the former Yugoslav Republic of Macedonia, App. No. 13252/02 (2008)
  • ECtHR, Sulejmanov v. the former Yugoslav Republic of Macedonia, App. No. 69875/01 (2008)
  • ECtHR, Çakıcı v. Turkey [GC], App. No. 23657/94 (1999)
  • ECtHR, Creangă v. Romania [GC], App. No. 29226/03 (2012)
  • ECtHR, Salman v. Turkey [GC], App. No. 21986/93 (2000)
  • ECtHR, Rupa v. Romania (no. 1), App. No. 58478/00 (2008)
  • ECtHR, Orhan v. Turkey, App. No. 25656/94 (2002)
  • ECtHR, Öcalan v. Turkey [GC], App. No. 46221/99 (2005)
  • ECtHR, Yusupova and Zaurbekov v. Russia, App. No. 22057/02 (2008)
  • ECtHR, Matayeva and Dadayeva v. Russia, App. No. 49076/06 (2011)
  • ECtHR, McKerr v. United Kingdom (dec.), App. No. 28883/95 (2000)
  • ECtHR, Cobzaru v. Romania, App. No. 48254/99 (2007)
  • ECtHR, Ribitsch v. Austria, Series A no. 336, (1995)
  • ECtHR, Georgiy Bykov v. Russia, App. No. 24271/03 (2010)
  • ECtHR, Denisenko and Bogdanchikov v. Russia, App. No. 3811/02 (2009).
  • U.K., Saadi v. Italy, Case 37201/06 (2009) 49 EHRR 30
  • ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), (1986)
  • ECtHR, Kadirova and Others v. Russia, App. No. 5432/07 (2012)
  • ECtHR, Corsacov v. Moldova, App. No. 18944/02 (2006)
  • ECtHR, Assenov and Others v. Bulgaria, App. Nos. 90/1997/874/1086 (1998)
  • ECtHR, Batı and Others v. Turkey, App. Nos. 33097/96 and 57834/00 (2004)
  • ECtHR, Tanrıkulu and Others v. Turkey, App. No. 40150/98, 40153/98 and 40160/98 (2001)
  • ECtHR, Gül v. Turkey, App. No. 22676/93 (2000)
  • ECTHR, Boicenco v. Moldova, App. No. 41088/05 (2006)
  • ECtHR, Oğur v. Turkey [GC], App. No. 21594/93 (1999)
  • ECtHR, Mehmet Emin Yüksel v. Turkey, App. No. 40154/98 (2004)
  • ECtHR, Ergi v Turkey, App. No. 66/1997/850/1057 (1998)
  • ECtHR, Ognyanova and Choban v. Bulgaria, App. No. 46317/99 (1999)
  • ECtHR, Khadzhialiyev and Others v. Russia, App. No. 3013/04 (2008)
  • ECtHR, Denis Vasilyev v. Russia, App. No. 32704/04 (2009)
  • ECtHR, Gorgiev v. the former Yugoslav Republic of Macedonia, App. No. 26984/05 (2012)
  • ECtHR, Anguelova v. Bulgaria, App. No. 38361/97 (2002)
  • ECtHR, Al-Skeini and Others v. the United Kingdom [GC], App. No. 55721/07 (2011)
  • ECtHR, Association “21 December 1989” and Others v. Romania, App. Nos. 33810/07 and 18817/08 (2011)
  • ECtHR, Selmouni v. France [GC], App. no. 25803/94 (1999)
  • ECtHR, Labita v. Italy, App. No. 26772/95 (April 6, 2000)
  • ECtHR, Ireland v. United Kingdom, (Application no. 5310/71) (1978)
  • ECtHR, Jalloh v. Germany [GC], App. No. 54810/00 (2006)
  • ECtHR, Chahal v. United Kingdom, App. No. 22414/9315 (November 15 1996)
  • ECtHR, Krastanov v. Bulgaria, App. No. 50222/99 (2004)
  • ECtHR, Z and Others v. the United Kingdom [GC], App. No. 29392/95 (2001)
  • ECtHR, Mahmut Kaya v. Turkey, App. No. 22535/93 (2000)
  • ECtHR, Iljina and Sarulienė v. Lithuania, App. No. 32293/05 (March 15 2011)
  • ECtHR, Dikme v. Turkey, App. No. 20869/92 (2000)
  • ECtHR, Gäfgen v. Germany [GC], App. No. 22978/05 (2010)
  • ECtHR, Campbell and Cosans v. the United Kingdom, App. Nos. 7511/76; 7743/76 (February 25 1982)
  • ECtHR, laşcu and Others v. Moldova and Russia [GC], App. No. 48787/99 (2004)
  • ECtHR, Wieser v. Austria, App. No. 2293/03 (2007)
  • ECtHR, Zontul v. Greece, App. No. 12294/07 (2012)
  • ECtHR, Gldani Congregation of Jehovah’s Witnesses v. Georgia, App. No. 71156/01 (May 3, 2007)
  • ECtHR, M.C. v. Bulgaria, App. No. 39272/98 (2003)
  • ECtHR, Cruz Varas and Others v. Sweden, App. No. 15576/89 (March 20 1991)
  • ECHR, Mamatkulov and Askarov v. Turkey [GC], App. Nos. 46827/99 and 46951/99 (2005)
  • ECtHR, Hilal v. the United Kingdom, App. No. 45276/99 (2001)
  • ECtHR, Vilvarajah and Others v. the United Kingdom, App. Nos. 13163/87; 13164/87; 13165/87; 13447/87; 13448/87 (October 30 1991)
  • ECtHR, Al-Moayad v. Germany (dec.), App. No. 35865/03 (2007)
  • ECtHR, Babar Ahmad and Others v. the United Kingdom (dec.), App. Nos. 24027/07, 11949/08 and 36742/08 (2010)
  • ECtHR, Quinn v. France, App. No. 18580/91 (March 22 1995)
  • ECtHR, Recep Kurt v. Turkey, No. 23164/09 (2011)
  • ECtHR, Bitiyeva and X v. Russia, App. Nos. 57953/00; 37392/03 (June 21 2007)
  • ECtHR, Kadirova and Others v. Russia, App. No. 5432/07 (2012)
  • ECtHR, Chitayev v. Russia, App. No. 59334/00 (2007).
  • ECtHR, Othman (Abu Qatada) v. the United Kingdom, App. No. 8139/09 (2012)
  • ECtHR, Mamedova v. Russia, App. No. 7064/05 (2006)
  • ECtHR, Storck v. Germany, App. No. 61603/00 (2005)
  • ECtHR, Rantsev v. Cyprus and Russia, App. No. 25965/04 (2010)
  • ECtHR, Raninen v Finland, App. No. 20972/92 (1997)
  • ECtHR, Pretty v. United Kingdom, App. No. 2346/02 (2002)
  • ECtHR, Olsson v. Sweden (No. 1), No. 10465/83 (1988)
  • ECtHR, Kroon and Others v The Netherlands, App. No. 18535/91 (1994)
  • ECtHR, Suheyla Aydin v Turkey, App. No. 25660/94 (2005)
  • ECtHR, Khashiyev and Akayeva v. Russia, App. Nos. 57942/00 and 57945/00 (2005)
  • ECtHR, Jabari v Turkey, App. No. 40035/98 (2005)
  • ECtHR, Boyle and Rice v. United Kingdom, App. No. 9659/82; 9658/82) (1988)
  • ECtHR, Estamirov and Others v Russia, App. No. 60272/00 (2006)
  • ECtHR, Musayev and Others v Russia, App. No. 57941/00; 58699/00; 60403/00 (2007)
  • United Nations Human Rights Committee, Alzery v. Sweden, UN Doc. CCPR/C/88/D/1416/2005 (2006) 35
  • United Nations Committee against Torture, Agiza v. Sweden, Communication No. 233/2003, UN Doc. CAT/C/34/D/233/2003 (2005)

Other national standards, law or jurisprudence

  • U.K., Abbasi and Another v. Secretary of State for Foreign and Commonwealth Affairs and Secretary of State for the Home Department, [2002] EWCA Civ 1598
  • U.S., Falen Gherebi v. George Walker Bush; Donald H. Rumsfeld, 374 F.3d 727 (9th Cir. 2004)

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

The decision was cited in:

Official Case Documents

Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback