This judgment, **** for the ongoing legal discourse regarding the accountability of European states for their role in the “War on Terror,” concerns the extraordinary rendition and secret detention of Mr. Abd Al Rahim Hussein Al Nashiri. The European Court of Human Rights (ECtHR) found that Lithuania, by hosting a secret CIA detention facility (“Detention Site Violet”) between 2005 and 2006, facilitated the applicant’s incommunicado detention and subsequent transfer to other facilities. The Court established that Lithuania was complicit in the CIA’s rendition program, knowing that such transfers exposed the applicant to a real risk of torture, ill-treatment, and a flagrant denial of justice. Consequently, the Court ruled that Lithuania violated the applicant’s rights under Articles 6, 8, and Articles 2 and 3 of the Convention in conjunction with Protocol No. 6. This decision reinforces the principle that European states cannot outsource their human rights obligations to foreign intelligence agencies.
### Structure and Provisions
The judgment follows the Court’s established methodology for “rendition cases,” building upon its previous findings in cases against Poland and Romania.
* **Preliminary Objections:** The Court dismissed Lithuania’s objection regarding *ratione personae* (jurisdiction), confirming that the applicant’s detention on Lithuanian soil falls under the state’s responsibility.
* **Admissibility (Art. 35 § 2 (b)):** A significant change in this decision is the application of the “substantially the same” rule. The Court declared the applicant’s complaints regarding Articles 3 (substantive/procedural) and 5 inadmissible, as these matters had already been examined by the UN Working Group on Arbitrary Detention (WGAD).
* **Merits:** The Court proceeded to examine the remaining complaints under Articles 6, 8, and 2/3 (Protocol 6), finding violations in all three areas.
* **Article 46 (Execution):** The Court explicitly requires Lithuania to seek diplomatic assurances from the US that the applicant will not be subjected to the death penalty.
### Key Provisions for Legal Use
For practitioners and observers, the most critical aspects of this judgment include:
1. **The “Flagrant Denial of Justice” Test:** The Court reaffirmed that transferring an individual to a jurisdiction where they face a trial before a military commission—which lacks independence and relies on evidence obtained through torture—constitutes a flagrant denial of justice under Article 6.
2. **State Responsibility for “Acquiescence and Connivance”:** The judgment clarifies that a host state is responsible for the actions of foreign officials on its territory if it provides the infrastructure, logistics, or airspace that enables human rights violations, even if the host state did not directly conduct the interrogations.
3. **The “Substantially the Same” Threshold:** This judgment serves as a precedent for how the ECtHR interacts with UN procedures. By declaring the Article 3 and 5 complaints inadmissible due to the prior WGAD opinion, the Court has drawn a clear boundary to avoid the duplication of international proceedings, while simultaneously preserving its own jurisdiction over distinct Convention-specific rights (like the right to family life under Article 8).
4. **Positive Obligations under Article 8:** The Court held that the incommunicado detention and the resulting prolonged separation from family, enabled by the host state’s cooperation with the CIA, constitutes a violation of the right to private and family life, independent of the physical torture claims.
5. **Individual Measures:** The Court’s mandate under Article 46 for the respondent state to actively seek assurances against the death penalty is a powerful tool for ensuring that the judgment has a concrete impact on the applicant’s current situation in Guantánamo.
