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Complaint Pending Before Romanian Authorities Numéro de dossier 33234/12 COUR EUROPÉENNE DES DROITS DE L’HOMME EUROPEAN COURT OF HUMAN RIGHTS Conseil de l’Europe – Council of Europe Strasbourg, France REQUÊTE APPLICATION al Nashiri v. Romania présentée en application de l’article 34 de la Convention européenne des Droits de l’Homme, ainsi que des articles 45 et 47 du règlement de la Court under Article 34 of the European Convention on Human Rights and Rules 45 and 47 of the Rules of the Court Table of Contents I. THE PARTIES ......................................................................................................... 5 THE APPLICANT .......................................................................................................... 5 THE HIGH CONTRACTING PARTY ................................................................................ 5 II. SUMMARY ............................................................................................................. 5 III. STATEMENT OF FACTS ................................................................................... 9 POST-11 SEPTEMBER 2001 SECRET DETENTION AND EXTRAORDINARY RENDITION PROGRAMME ............................................................................................................. 10 ROMANIA’S PARTICIPATION IN THE CIA’S SECRET DETENTION AND EXTRAORDINARY RENDITION PROGRAMME .......................................................................................... 11 MR. AL NASHIRI’S RENDITION TO A SECRET CIA PRISON IN ROMANIA ..................... 17 MR. AL NASHIRI’S SECRET DETENTION, TORTURE AND ILL-TREATMENT IN ROMANIA .................................................................................................................................. 20 MR. AL NASHIRI’S TRANSFERFROM ROMANIA ......................................................... 26 ROMANIA’S KNOWLEDGE OF SECRET DETENTION AND EXTRAORDINARY RENDITION BY JUNE 2003 ............................................................................................................ 26 Newspaper Reports ............................................................................................... 26 U.N. Sources ......................................................................................................... 30 Human Rights Organizations ............................................................................... 32 European Legal Cases .......................................................................................... 33 Publicly Available Information on Military Commission Trials and the Death Penalty .................................................................................................................. 34 Diplomatic Missions of Romania ......................................................................... 38 MR. AL NASHIRI’S DETENTION AND TREATMENT AT GUANTÁNAMO BAY ................ 38 ROMANIAN SENATE PROCEEDINGS ........................................................................... 43 2012 CRIMINAL COMPLAINT PENDING BEFORE ROMANIAN AUTHORITIES ................. 47 IV. ALLEGED VIOLATIONS OF THE CONVENTION .................................... 47 STANDARD AND BURDEN OF PROOF .......................................................................... 48 STATE RESPONSIBILITY UNDER THE CONVENTION .................................................... 50 A. TREATMENT AT THE BRIGHT LIGHT FACILITY, BUCHAREST ........ 52 1. TORTURE AND ILL-TREATMENT: ARTICLE 3 .......................................................... 52 Legal Standards: Torture and Ill-Treatment ........................................................ 53 Torture and Inhuman and Degrading Treatment in Romania Violated Article 3 56 2. PROLONGED INCOMMUNICADO DETENTION: ARTICLE 5 ....................................... 58 Legal Standards: Unlawful Detention .................................................................. 58 Prolonged Incommunicado Detention in Romania Violated Article 5 ................. 60 3. ILL-TREATMENT AND INCOMMUNICADO DETENTION: ARTICLE 8 .......................... 60 Legal Standards: Physical and Psychological Integrity and Family Life ............ 60 Ill-treatment and Incommunicado Detention in Romania Violated Article 8 ...... 61 B. TRANSFER FROM ROMANIA ......................................................................... 62 1. TRANSFER TO THE DEATH PENALTY: ARTICLE 2, ARTICLE 3, PROTOCOL NO. 6 .... 62 Legal Standards: the Death Penalty ..................................................................... 63 2 Transfer to Real Risk of the Death Penalty Violated Articles 2 and 3 and Protocol No. 6...................................................................................................................... 66 2. TRANSFER TO ILL-TREATMENT IN U.S. DETENTION: ARTICLE 3 ............................ 68 Legal Standards: Transfer to Ill-Treatment ......................................................... 68 Transfer from Romania Despite Real Risk of Further Ill-Treatment Violated Article 3 ................................................................................................................ 69 3. TRANSFER TO PROLONGED ARBITRARY DETENTION: ARTICLE 5 .......................... 69 Legal Standards: Transfer to Arbitrary Detention ............................................... 69 Transfer to Prolonged Incommunicado Detention Violated Article 5 ................. 71 4. TRANSFER TO FLAGRANTLY UNFAIR TRIAL: ARTICLE 6 ....................................... 71 Legal Standards: Unfair Trial .............................................................................. 71 Transfer Despite Risk of Flagrant Denial of Fair Trial Violated Article 6 ......... 71 a) Right to an independent and impartial tribunal ............................................ 72 b) Tribunal established by law .......................................................................... 74 c) Fair trial guarantees ...................................................................................... 74 Conclusion ............................................................................................................ 78 C. FAILURE TO CONDUCT AN EFFECTIVE INVESTIGATION .................. 80 Legal Standards: Effective Investigation .............................................................. 80 Romania’s Failure to Conduct an Effective Investigation Violates Articles 2, 3, 5, 8 and 13 ................................................................................................................ 83 The Investigation was Incapable of Identifying or Prosecuting the Perpetrators ........................................................................................................................... 84 The Investigation Was Neither Thorough Nor Effective .................................. 85 The Investigation Was Neither Independent Nor Impartial .............................. 86 There Was No Public Scrutiny of the Inquiry .................................................. 86 D. RIGHT TO TRUTH ............................................................................................. 87 Legal Standards: Right to Truth ........................................................................... 87 Right to Truth Under International Law .............................................................. 88 Romania Violated the Right to Truth .................................................................... 91 V. STATEMENT RELATIVE TO ARTICLE 35 OF THE CONVENTION ...... 92 VICTIM STATUS ......................................................................................................... 93 EXHAUSTION OF AVAILABLE REMEDIES ................................................................... 93 Legal Principles: Obligation to Exhaust .............................................................. 94 Mr. Al Nashiri Is Not Required To Exhaust Domestic Remedies Which Plainly Would be Ineffective. ............................................................................................ 95 SIX-MONTH RULE ..................................................................................................... 96 VI. STATEMENT OF THE OBJECT OF THE APPLICATION ........................ 97 POST-TRANSFER OBLIGATION TO INTERVENE ........................................................... 98 VII. STATEMENT CONCERNING OTHER INTERNATIONAL PROCEEDINGS ...................................................................................................... 100 VIII. REQUEST FOR PRIORITY PURSUANT TO RULE 41 OF THE RULES OF COURT............................................................................................................... 100 CATEGORY I CLAIM: PARTICULAR RISK TO LIFE OR HEALTH OF THE APPLICANTS . 100 Prohibition Of The Death Penalty In All Circumstances ................................... 101 3 Death Row Phenomenon .................................................................................... 101 Imposition of the Death Penalty after an Unfair Trial ....................................... 102 Informing Military Commission Proceedings Including Through Post-Transfer Obligations To Preclude the Death Penalty ....................................................... 103 CATEGORY III CLAIMS: APPLICATIONS RAISING ISSUES UNDER ARTICLES 2, 3 AND 5(1) OF THE CONVENTION. ...................................................................................... 105 IX. DECLARATION AND SIGNATURE ............................................................. 105 X. LIST OF EXHIBITS ..........................................................................................
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