Khaled El-Masri v Former Yugoslav Republic of Macedonia (third party intervention)
Khaled El-Masri is a German national of Lebanese origin. Accused of being a member of Al-Qaida, he was arrested by Macedonian agents who handed him over to a CIA team, who then detained and tortured him for 4 months in Afghanistan. He sought redress for the treatment he suffered.
On 31 December 2003, accused of being a member of Al-Qaida, El-Masri was arrested by Macedonian police on arrival in the country, held incommunicado at a hotel for 23 days, then handed over to US Central Intelligence Agency (CIA) agents who beat, stripped, and drugged him, then flew him to Afghanistan. After being detained in inhumane conditions there for 4 months, he was released in Albania on 28 May 2004.
After his release, Mr El-Masri returned to Germany and, after a criminal complaint in the Former Yugoslav Republic of Macedonia (FYRM) was dismissed, he brought a case to the European Court of Human Rights (ECtHR), claiming the FYRM had a role in his extraordinary rendition and torture, which they had failed to investigate. The case was sent directly to the Grand Chamber of the ECtHR.
REDRESS intervened in this case on 4 April 2011, and filed an updated submission on 12 April 2012.
The intervention noted the duty to adequately investigate allegations of extraordinary rendition, in a manner that is prompt, independent, thorough, capable of leading to the identification and prosecution of persons responsible and provides for public scrutiny and victim participation.
REDRESS also highlighted the duty to provide adequate remedy and reparation, including the right to truth (the right of the victim to be informed regarding the violations suffered, the identity of the perpetrators, the causes of such violations and the full circumstances under which they occurred) – which should not be barred by national security considerations.
The intervention also argued that adequate remedy also requires rehabilitation, safeguards against non-repetition and measures to restore public confidence in the government agencies responsible. REDRESS also filed an expert report from a clinical psychologist, which explained that the right to truth is itself a form of reparation, whereas impunity can contribute to further trauma and stress.
On 13 December 2012, the Grand Chamber of the European Court of Human Rights held that FYRM’s actions, including detaining El-Masri in a hotel, transferring him to an aircraft, and placing him in the hands of CIA agents, were a violation of Articles 3, 5, 8, and 13 of the Convention.
The Grand Chamber held that the State failed in its responsibility to carry out prompt, independent and thorough investigations and ensure victim participation in the investigation. The investigation was not effective and could not be regarded as being capable of leading to the identification and punishment of those responsible for the alleged events. It could not be considered capable of establishing the truth, which was necessary to provide justice in the context of extraordinary renditions, and thus failed to provide justice for the victim.
Case name: El-Masri v The Former Yugoslav Republic of Macedonia (Application no. 39630/09)
Court/Body: European Court of Human Rights (Grand Chamber)
Date intervention filed: 4 April 2011 and 12 April 2012 (updated)
Current status: Decision reached
Date of final decision: 13 December 2012
Exclusionary Rule: A rule that evidence obtained illegally, such as through torture, cannot be used in court.
Non-derogable: A non-derogable right is a right that cannot be taken away.
Extraordinary rendition: A transfer of persons from one jurisdiction or State to another, for the purposes of detention and interrogation outside the normal legal system, creating a heightened risk of torture or cruel, inhuman or degrading treatment.