Polish government knew about CIA prisons in Poland

[Magda Hassan]

[COLOR=#000000][FONT=Arial]© European Parliament(i) "The Fava inquiry"105. On 18 January 2006 the European Parliament set up a Temporary Committee on Extraordinary Rendition and appointed Mr Claudio Fava as rapporteur with a mandate to investigate the alleged existence of CIA prisons in Europe. The Fava inquiry held 130 meetings and sent delegations to the former Yugoslav Republic of Macedonia, the United States, Germany, the United Kingdom, Romania, Poland and Portugal.It identified at least 1,245 flights operated by the CIA in European airspace between the end of 2001 and 2005.106. The report, deploring the passivity of some EU Member States in the face of illegal CIA operations, as well as the lack of co-operation from the EU Council of Ministers was approved with 382 votes in favour, 256 against with 74 abstentions on 14 February 2007.107. As regards Poland, the report noted that in the light of the available circumstantial evidence it was not possible to "acknowledge or deny that secret detention centres were based in Poland". However, it further noted that seven of the fourteen detainees transferred from a secret detention facility to Guantànamo in September 2006 coincide with those mentioned in a report by ABS News published in December 2005 (see paragraph § 177 of the resolution described in paragraph 109 below) listing the identities of twelve top Al'Qaeda suspects held in Poland.In respect of the Polish Parliament inquiry, the report concluded that it had not been conducted independently and that the statements given to the Committee delegation were contradictory and compromised by confusion about flight logs108. The report censored the lack of cooperation of many member States and of the Council of the EU towards the Temporary Committee. The national governments specifically criticised for their unwillingness to cooperate with Parliament's investigations were those of Austria, Italy, Poland, Portugal and the United Kingdom.(ii) The EU Parliament February 2007 Resolution109. On 14 February 2007, following the examination of the Fava Inquiry report, the European Parliament adopted the Resolution on the alleged use of European countries by the CIA for the transportation and illegal detention of prisoners (2006/2200(INI) "the EU February 2007 Resolution"). It read, in so far as relevant, as follows:"The European Parliament,...9. Deplores the fact that the governments of European countries did not feel the need to ask the US Government for clarifications regarding the existence of secret prisons outside US territory;...13. Denounces the lack of cooperation of many Member States, and of the Council of the European Union towards the Temporary Committee; stresses that the behaviour of Member States, and in particular the Council and its Presidencies, has fallen far below the standard that Parliament is entitled to expect;14. Believes that the serious lack of concrete answers to the questions raised by victims, nongovernmental organisations (NGOs), the media and parliamentarians has only served to strengthen the validity of already well-documented allegations;...36. Recalls that the programme of extraordinary rendition is an extra-judicial practice which contravenes established international human rights standards and whereby an individual suspected of involvement in terrorism is illegally abducted, arrested and/or transferred into the custody of US officials and/or transported to another country for interrogation which, in the majority of cases, involves incommunicado detention and torture;...39. Condemns extraordinary rendition as an illegal instrument used by the United States in the fight against terrorism; condemns, further, the condoning and concealing of the practice, on several occasions, by the secret services and governmental authorities of certain European countries;...43. Regrets that European countries have been relinquishing their control over their airspace and airports by turning a blind eye or admitting flights operated by the CIA which, on some occasions, were being used for extraordinary rendition or the illegal transportation of detainees, and recalls their positive obligations arising out of the case law of the European Court of Human Rights, as reiterated by the European Commission for Democracy through Law (Venice Commission);44. Is concerned, in particular, that the blanket overflight and stopover clearances granted to CIA-operated aircraft may have been based, inter alia, on the NATO agreement on the implementation of Article 5 of the North Atlantic Treaty, adopted on 4 October 2001;...48. Confirms, in view of the additional information received during the second part of the proceedings of the Temporary Committee, that it is unlikely that certain European governments were unaware of the extraordinary rendition activities taking place in their territory;...POLAND167. Deplores the glaring lack of cooperation by the Polish Government with the Temporary Committee, in particular when receiving the Temporary Committee delegation at an inappropriate level; deeply regrets that all those representatives of the Polish Government and Parliament who were invited to do so, declined to meet the Temporary Committee;168. Believes that this attitude reflects an overall rejection on the part of the Polish Government of the Temporary Committee and its objective to examine allegations and establish facts;169. Regrets that no special inquiry committee has been established and that the Polish Parliament has conducted no independent investigation;170. Recalls that on 21 December 2005, the Special Services Committee held a private meeting with the Minister Coordinator of Special Services and the heads of both intelligence services; emphasises that the meeting was conducted speedily and in secret, in the absence of any hearing or testimony and subject to no scrutiny; stresses that such an investigation cannot be defined as independent and regrets that the committee released no documentation, save for a single final statement in this regard;171. Notes the 11 stopovers made by CIA-operated aircraft at Polish airports and expresses serious concern about the purpose of those flights which came from or were bound for countries linked with extraordinary rendition circuits and the transfer of detainees; deplores the stopovers in Poland of aircraft that have been shown to have been used by the CIA, on other occasions, for the extraordinary rendition of Bisher Al-Rawi, Jamil El-Banna, Abou Elkassim Britel, Khaled El-Masri and Binyam Mohammed and for the expulsion of Ahmed Agiza and Mohammed El Zar;172. Regrets that following the hearings carried out by the Temporary Committee delegation in Poland, there was confusion and contradictory statements were made about the flight plans for those CIA flights, which were first said not to have been retained, then said probably to have been archived at the airport, and finally claimed to have been sent by the Polish Government to the Council of Europe; acknowledges that in November 2006, the Szymany Airport's management provided the Temporary Committee with partial information on flight plans;...176. Takes note of the declarations made by Szymany Airport employees, and notably by its former manager, according to which:- in 2002, two Gulfsfream jets, and in 2003, four Gulfsfream jets with civilian registration numbers were parked at the edge of the аirport and did not enter customs clearance;- orders were given directly by the regional border guards about the arrivals of the aircraft referred to, emphasising that the аirport authorities should not approach the aircraft and that military staff and services alone were to handle those aircraft and to complete the technical arrangements only after the landing;- according to a former senior official of the аirport, no Polish civilian or military staff were permitted to approach the aircraft;- excessive landing fees were paid in cash - usually between EUR 2,000 and EUR 4,000;- one or two vehicles waited for the arrival of the aircraft;- the vehicles had military registration numbers starting with "H", which are associated with the intelligence training base in nearby Stare Kiejkuty;ÖŠ in one case, a medical emergency vehicle belonging to either the police academy or the military base was involved;- one airport staff member reported following the vehicles on one occasion and seeing them heading towards the intelligence training centre at Stare Kiejkuty;177. Acknowledges that shortly thereafter and in accordance with President George W. Bush's statements on 6 September 2006, a list of the 14 detainees who had been transferred from a secret detention facility to Guantànamo was published; notes that 7 of the 14 detainees had been referred to in a report by ABC News, which was published 9 months previously on 5 December 2005 but withdrawn shortly thereafter from ABC's webpage, listing the names of twelve top Al'Qaeda suspects held in Poland;178. Encourages the Polish Parliament to establish a proper inquiry committee, independent of the government and capable of carrying out serious and thorough investigations;179. Regrets that Polish human rights NGOs and investigative journalists have faced a lack of cooperation from the government and refusals to divulge information;180. Takes note of the statements made by the highest representatives of the Polish authorities that no secret detention centres were based in Poland; considers, however, that in the light of the above circumstantial evidence, it is not possible to acknowledge or deny that secret detention centres were based in Poland;181. Notes with concern that the official reply of 10 March 2006 from Under-Secretary of State Witold Waszykowski to the Secretary-General of the Council of Europe, Terry Davis, indicates the existence of secret cooperation agreements, initialled by the two countries' secret services themselves, which exclude the activities of foreign secret services from the jurisdiction of Polish judicial bodies."(d) The 2007 ICRC Report110. The International Committee of the Red Cross made its first written interventions to the US authorities in 2002, requesting information on the whereabouts of persons allegedly held under US authority in the context of the fight against terrorism. It prepared two reports on undisclosed detention on 18 November 2004 and 18 April 2006. These reports still remain classified.After President Bush publicly confirmed that fourteen terrorist suspects ("high-value detainees") including the applicant detained under the CIA detention programme had been transferred to the military authorities in the US Guantànamo Bay Naval Base (see also paragraphs 26 and 45 above), the ICRC was granted access to those detainees and interviewed them in private from 6 to 11 October and from 4 to 14 December 2006. On this basis, it drafted its Report on the Treatment of Fourteen "High Value Detainees" in CIA Custody of February 2007 "the 2007 ICRC Report" which related to the CIA rendition programme, including arrest and transfers, incommunicado detention and other conditions and treatment. The aim of the report, as stated therein, was to provide a description of the treatment and material conditions of detention of the fourteen detainees concerned during the period they had been held in the CIA programme.The report was (and formally remains) classified as "strictly confidential". It was published by the New York Review of Books on 6 April 2009 and further disseminated via various websites, including the ACLU's site[10].111. The rendition programme as applied to those detainees is, in so far as relevant, related as follows:" 1. MAIN ELEMENTS OF THE CIA DETENTION PROGRAM... The fourteen, who are identified individually below, described being subjected, in particular during the early stages of their detention, lasting from some days up to several months, to a harsh regime employing a combination of physical and psychological ill-treatment with the aim of obtaining compliance and extracting information. This regime began soon after arrest, and included transfers of detainees to multiple locations, maintenance of the detainees in continuous solitary confinement and incommunicado detention throughout the entire period of their undisclosed detention, and the infliction of further ill-treatment through the use of various methods either individually or m combination, in addition to the deprivation of other basic material requirements....2. ARREST AND TRANSFER... The fourteen were arrested in four different countries [Thailand, Pakistan, Somali and the United Arab Emirates]. In each case, they were reportedly arrested by the national police or security forces of the country in which they were arrested.In some cases US agents were present at the time of arrest. All fourteen were detained in the country of arrest for periods ranging from a few days up to one month before their first transfer to a third country ...(reportedly Afghanistan, see below) and from there on to other countries. Interrogation in the country of arrest was conducted by US agents in nearly all cases. In two cases, however, detainees reported having been interrogated by the national authorities, either alone or jointly with US agents:...Hussein Abdul Nashiri was allegedly interrogated for the first month after arrest by Dubai agents....During their subsequent detention, outlined below, detainees sometimes reported the presence of non-US personnel (believed to be personnel of the country in which they were held), even though the overall control of the facility appeared to remain under the control of the US authorities.Throughout their detention, the fourteen were moved from one place to another and were allegedly kept in several different places of detention, probably in several different countries. The number of locations reported by the detainees varied, however ranged from three to ten locations prior to their arrival in Guantànamo in September 2006.The transfer procedure was fairly standardised in most cases. The detainee would be photographed, both clothed and naked prior to and again after transfer. A body cavity check (rectal examination) would be carried out and some detainees alleged that a suppository (the type and the effect of such suppositories was unknown by the detainees), was also administered at that moment.The detainee would be made to wear a diaper and dressed in a tracksuit. Earphones would be placed over his ears, through which music would sometimes be played. He would be blindfolded with at least a cloth tied around the head and black goggles. In addition, some detainees alleged that cotton wool was also taped over their eyes prior to the blindfold and goggles being applied. Mr Abu Zubaydah alleged that during one transfer operation the blindfold was tied very tightly resulting in wounds to his nose and ears. He does not know how long the transfer took but, prior to the transfer, he reported being told by his detaining authorities that he would be going on a journey that would last twenty-four to thirty hours.The detainee would be shackled by hands and feet and transported to the airport by road and loaded onto a plane. He would usually be transported in a reclined sitting position with his hands shackled in front. The journey times obviously varied considerably and ranged from one hour to over twenty-four to thirty hours. The detainee was not allowed to go to the toilet and if necessary was obliged to urinate or defecate into the diaper. On some occasions the detainees were transported lying flat on the floor of the plane and/or with their hands cuffed behind their backs. When transported in this position the detainees complained of severe pain and discomfort.In addition to causing severe physical pain, these transfers to unknown locations and unpredictable conditions of detention and treatment placed mental strain on the fourteen, increasing their sense of disorientation and isolation. The ability of the detaining authority to transfer persons over apparently significant distances to secret locations in foreign countries acutely increased the detainees' feeling of futility and helplessness, making them more vulnerable to the methods of ill-treatment described below.The ICRC was informed by the US authorities that the practice of transfers was linked specifically to issues that included national security and logistics, as opposed to being an integral part of the program, for example to maintain compliance. However, in practice, these transfers increased the vulnerability of the fourteen to their interrogation, and was performed in a manner (goggles, earmuffs, use of diapers, strapped to stretchers, sometimes rough handling) that was intrusive and humiliating and that challenged the dignity of the persons concerned. As their detention was specifically designed to cut off contact with the outside world and emphasise a feeling of disorientation and isolation, some of the time periods referred to in the report are approximate estimates made by the detainees concerned. For the same reasons, the detainees were usually unaware of their exact location beyond the first place of detention in the country of arrest and the second country of detention, which was identified by all fourteen as being Afghanistan. This report will not enter into conjecture by referring to possible countries or locations of places of detention beyond the first and second countries of detention, which are named, and will refer, where necessary, to subsequent places of detention by their position in the sequence for the detainee concerned (e.g.. third place of detention, fourth place of detention). The ICRC is confident that the concerned authorities will be able to identify from their records which place of detention is being referred to and the relevant period of detention....1.2. CONTINUOUS SOLITARY CONFINEMENT AND INCOMMUNICADO DETENTIONThroughout the entire period during which they were held in the CIA detention program which ranged from sixteen months up to almost four and a half years and which, for eleven of the fourteen was over three years the detainees were kept in continuous solitary confinement and incommunicado detention. They had no knowledge of where they were being held, no contact with persons other than their interrogators or guards. Even their guards were usually masked and, other than the absolute minimum, did not communicate in any way with the detainees. None had any real let alone regular contact with other persons detained, other than occasionally for the purposes of inquiry when they were confronted with another detainee. None had any contact with legal representation. The fourteen had no access to news from the outside world, apart from in the later stages of their detention when some of them occasionally received printouts of sports news from the internet and one reported receiving newspapers.None of the fourteen had any contact with their families, either in written form or through family visits or telephone calls. They were therefore unable to inform their families of their fate. As such, the fourteen had become missing persons. In any context, such a situation, given its prolonged duration, is clearly a cause of extreme distress for both the detainees and families concerned and itself constitutes a form of ill-treatment.In addition, the detainees were denied access to an independent third party. In order to ensure accountability, there is a need for a procedure of notification to families, and of notification and access to detained persons, under defined modalities, for a third party, such as the ICRC. That this was not practiced, to the knowledge of the ICRC, neither for the fourteen nor for any other detainee who passed through the CIA detention program, is a matter of serious concern.1.3. OTHER METHODS OF ILL-TREATMENT... [T]he fourteen were subjected to an extremely harsh detention regime, characterised by ill-treatment. The initial period of interrogation, lasting from a few days up to several months was the harshest, where compliance was secured by the infliction of various forms of physical and psychological ill-treatment. This appeared to be followed by a reward based interrogation approach with gradually improving conditions of detention, albeit reinforced by the threat of returning to former methods.The methods of ill-treatment alleged to have been used include the following: Suffocation by water poured over a cloth placed over the nose and mouth, alleged by three of the fourteen. Prolonged stress standing position, naked, held with the arms extended and chained above the head, as alleged by ten of the fourteen, for periods from two or three days continuously, and for up to two or three months intermittently, during which period toilet access was sometimes denied resulting in allegations from four detainees that they had to defecate and urinate over themselves. Beatings by use of a collar held around the detainees' neck and used to forcefully bang the head and body against the wall, alleged by six of the fourteen. Beating and kicking, including slapping, punching, kicking to the body and face, alleged by nine of the fourteen. Confinement in a box to severely restrict movement alleged in the case of one detainee. Prolonged nudity alleged by eleven of the fourteen during detention, interrogation and ill-treatment; this enforced nudity lasted for periods ranging from several weeks to several months. Sleep deprivation was alleged by eleven of the fourteen through days of interrogation, through use of forced stress positions (standing or sitting), cold water and use of repetitive loud noise or music. One detainee was kept sitting on a chair for prolonged periods of time. Exposure to cold temperature was alleged by most of the fourteen, especially via cold cells and interrogation rooms, and for seven of them, by the use of cold water poured over the body or, as alleged by three of the detainees, held around the body by means of a plastic sheet to create an immersion bath with just the head out of the water. Prolonged shackling of hands and/or feet was alleged by many of the fourteen. Threats of ill-treatment to the detainee and/or his family, alleged by nine of the fourteen. Forced shaving of the head and beard, alleged by two of the fourteen. Deprivation/restricted provision of solid food from 3 days to i month after arrest, alleged by eight of the fourteen.In addition, the fourteen were subjected for longer periods to a deprivation of access to open air, exercise, appropriate hygiene facilities and basic items in relation to interrogation, and restricted access to the Koran linked with interrogation....For the purposes of clarity in this report, each method of ill-treatment mentioned below has been detailed separately. However, each specific method was in fact applied in combination with other methods, either simultaneously, or in succession. Not all of these methods were used on all detainees, except in one case, namely that of Mr Abu Zubaydah, against whom all of the methods outlined below were allegedly used.1.3.1. SUFFOCATION BY WATERThree of the fourteen alleged that they were repeatedly subjected to suffocation by water. They were: Mr Abu Zubaydah, Mr Khaled Shaik Mohammedand Mr Al Nashiri.In each case, the person to be suffocated was strapped to a tilting bed and a cloth was placed over the face, covering the nose and mouth. Water was then poured continuously onto the cloth, saturating it and blocking off any air so that the person could not breathe. This form of suffocation induced a feeling of panic and the acute impression that the person was about to die. In at least one case, this was accompanied by incontinence of the urine. At a point chosen by the interrogator the cloth was removed and the bed was rotated into a head-up and vertical position so that the person was left hanging by the straps used to secure him to the bed. The procedure was repeated at least twice, if not more often, during a single interrogation session. Moreover, this repetitive suffocation was inflicted on the detainees during subsequent sessions. The above procedure is the so-called water boarding' technique....1.3.2. PROLONGED STRESS STANDINGTen of the fourteen alleged that they were subjected to prolonged stress standing positions, during which their wrists were shackled to a bar or hook in the ceiling above the head for periods ranging from two or three days continuously, and for up to two or three months intermittently. All those detainees who reported being held in this position were allegedly kept naked throughout the use of this form of ill-treatment.For example, ... Al Nashiri [alleged that he was shackled in this position] for at least two days in Afghanistan and again for several days in his third place of detention....1.3.3. BEATING BY USE OF A COLLARSix of the fourteen alleged that an improvised thick collar or neck roll was placed around their necks and used by their interrogators to slam them against the walls. For example, Mr Abu Zubaydah commented that when the collar was first used on him in his third place of detention, he was slammed directly against a hard concrete wall. He was then placed in a tall box for several hours (see Section 1.3.5., Confinement inboxes). After he was taken out of the box he noticed that a sheet of plywood had been placed against the wall. The collar was then used to slam him against the plywood sheet. He thought that the plywood was in order to absorb some of the impact so as to avoid the risk of physical injury. Mr Abu Zubaydah also believed that his interrogation was a form of experimentation with various interrogation techniques. Indeed some forms of ill-treatment were allegedly used against him that were not reported to have been used on other detainees. He claimed that he was told by one of the interrogators that he was one of the first to receive these interrogation techniques."...1.3.5. CONFINEMENT IN A BOXOne of the fourteen reported that confinement inside boxes was used as a form of ill-treatment. Mr Abu Zubaydah alleged that during an intense period of his interrogation in Afghanistan in 2002 he was held in boxes that had been specially designed to constrain his movement. One of the boxes was tall and narrow and the other was shorter, forcing him to crouch down. Mr Abu Zubaydah stated that: As it was not high enough even to sit upright, I had to crouch down. It was very difficult because of my wounds. The stress on my legs held in this position meant that my wounds both in the leg and stomach became very painful. I think this occurred about three months after my last operation". He went on to say that a cover was placed over the boxes while he was inside making it hot and difficult to breathe. The combination of sweat, pressure and friction from the slight movement possible to try to find a comfortable position, meant that the wound on his leg began to reopen and started to bleed. He does not know how long he remained in the small box; he says that he thinks he may have slept or fainted. The boxes were used repeatedly during a period of approximately one week in conjunction with other forms of ill-treatment, such as suffocation by water, beatings and use of the collar to slam him against the wall, sleep deprivation, loud music and deprivation of solid food. During this period, between sessions of ill-treatment he was made to sit on the floor with a black hood over his head until the next session began."1.3.6. PROLONGED NUDITYThe most common method of ill-treatment noted during the interviews with the fourteen was the use of nudity. Eleven of the fourteen alleged that they were subjected to extended periods of nudity during detention and interrogation, ranging from several weeks continuously up to several months intermittently....Mr Abu Zubaydah alleged that after spending several weeks in hospital following arrest he was transferred to Afghanistan where he remained naked, during interrogation, for between one and a half to two months. He was then examined by a woman he assumed to be a doctor who allegedly asked why he was still being kept naked. Clothes were given to him the next day. However, the following day, these clothes were then cut off his body and he was again kept naked. Clothes were subsequently provided or removed according to how cooperative he was perceived by his interrogators."1.3.7 SLEEP DEPRIVATION AND USE OF LOUD MUSICEleven of the fourteen alleged that they were deprived of sleep during the initial interrogation phase from seven days continuously to intermittent sleep deprivation that continued up to two or three months after arrest. Sleep was deprived in various ways, and therefore overlaps with some of the other forms of ill-treatment described in this section, from the use of loud repetitive noise or music to long interrogation sessions to prolonged stress standing to spraying with cold water.For example, Mr Abu Zubaydah alleged that, while detained in Afghanistan I was kept sitting on a chair, shackled by hands and feet for two to three weeks. During this time I developed blisters on the underside of my legs due to the constant sitting. I was only allowed to get up from the chair to go to the toilet, which consisted of a bucket'. He alleged that he was constantly deprived of sleep during this period If I started to fall asleep a guard would come and spray water in my face', he said. The cell was kept very cold by the use of air-conditioning and very loud shouting' music was constantly playing on an approximately fifteen minute repeat loop twenty-four hours a day. Sometimes the music stopped and was replaced by a loud hissing or crackling noise.
1.3.8. EXPOSURE TO COLD TEMPERATURE/COLD WATERDetainees frequently reported that they were held for their initial months of detention in cells which were kept extremely cold, usually at the same time as being kept forcibly naked. The actual interrogation room was also often reported to be kept cold. Requests for clothing or for blankets went unanswered. For example, Mr Abu Zubaydah alleged that his cell was excessively cold throughout the nine months he spent in Afghanistan.1.3.10. THREATSNine of the fourteen alleged that they had been subjected to threats of ill-treatment. Seven of these cases took the form of a verbal threat, including of ill-treatment in the form of water boarding', electric shocks, infection with HIV, sodomy of the detainee and the arrest and rape of his family, torture, being brought close to death, and of an interrogation process to which no rules applied'.Mr Abu Zubaydah alleged that, in his third place of detention, he was told by one of the interrogators that he was one of the first to receive these interrogation techniques,'so no rules applied'.... Mr Al Nashiri alleged that, in his third place of detention, he was threatened with sodomy, and with the arrest and rape of his family.1. 3.11 . FORCED SHAVINGTwo of the fourteen alleged that their heads and beards were forcibly shaved. Mr Abu Zubaydah alleged that his head and beard were shaved during the transfer to Afghanistan. ...1.3.12. DEPRIVATION/RESTRICTED PROVISION OF SOLID FOODEight of the fourteen alleged that they were deprived of solid food for periods ranging from three days to one month. This was often followed by a period when the provision of food was restricted and allegedly used as an incentive for cooperation. Two other detainees alleged that, whilst they were not totally deprived of solid food, food was provided intermittently or provided in restricted amounts.For example, Mr Abu Zubaydah alleged that in Afghanistan, during the initial period of two to three weeks while kept constantly sitting on a chair, he was not provided with any solid food, but was provided with Ensure (a nutrient drink) and water. After about two to three weeks he began to receive solid food (rice) to eat on a daily, once a day, basis. Approximately one month later, during a resumption of intense questioning he was again deprived of food for approximately one week and only given Ensure and water.1.4. FURTHER ELEMENTS OF THE DETENTION REGIMEThe conditions of detention under which the fourteen were held, particularly during the earlier period of their detention, formed an integral part of the interrogation process as well as an integral part of the overall treatment to which they were subjected as part of the CIA detention program. This report has already drawn attention to certain aspects associated with basic conditions of detention, which were clearly manipulated in order to exert pressure on the detainees concerned.In particular, the use of continuous solitary confinement and incommunicado detention, lack of contact with family members and third parries, prolonged nudity, deprivation/restricted provision of solid food and prolonged shackling have already been described above.The situation was further exacerbated by the following aspects of the detention regime: Deprivation of access to the open air Deprivation of exercise Deprivation of appropriate hygiene facilities and basic items in pursuance of interrogation Restricted access to the Koran linked with interrogation.These aspects cannot be considered individually, but must be understood as forming part of the whole picture. As such, they also form part of the ill-treatment to which the fourteen were subjected....Basic materials such as toothbrushes, toothpaste, soap, towels, toilet paper, clothes, underwear, blankets and mattress were not provided at all during the initial detention period, in some instances lasting several months. The timing of initial provision and continued supply of all these items was allegedly linked with compliance and cooperation on the part of the detainee. Even after being provided, these basic items allegedly were sometimes removed in order to apply pressure for purposes of interrogation.In the early phase of interrogation, from a few days to several weeks, access to shower was totally denied and toilet, as mentioned above, was either provided in the form of a bucket or not provided at allin which case those detainees shackled in the prolonged stress standing position had to urinate and defecate on themselves and remain standing in their own bodily fluids for periods of several days (see Section 1.3.2. Prolonged Stress Standing).112. Annex I to the 2007 ICRC Report contains examples of excerpts from some of the interviews conducted with the fourteen prisoners. These excerpts are reproduced verbatim. The verbatim record of the interview with the applicant gives details of his ill-treatment in the CIA custody "regarding his detention in Afghanistan where he was held for approximately nine months from May 2002 to February 2003". It also states that "he had previously been held for what he believes were several weeks and had several operations to severe gunshot injuries sustained at the time of arrest".(e) United Nations Reports(i) The 2010 UN Joint Study113. On 19 February 2010 the Human Rights Council of United Nations Organisation released the "Joint Study on Global Practices in Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism" "the 2010 UN Joint Study" (A/HRC/1342).114. In the summary, the experts explained their methodology as follows:"In conducting the present study, the experts worked in an open, transparent manner. They sought inputs from all relevant stakeholders, including by sending a questionnaire to all States Members of the United Nations. Several consultations were held with States, and the experts shared their findings with all States concerned before the study was finalized. Relevant ехсerpts of the report were shared with the concerned States on 23 and 24 December 2009.In addition to United Nations sources and the responses to the questionnaire from 44 States, primary sources included interviews conducted with persons who had been held in secret detention, family members of those held captive, and legal representatives of detainees. Flight data were also used to corroborate information. In addition to the analysis of the policy and legal decisions taken by States, the aim of the study was also to illustrate, in concrete terms, what it means to be secretly detained, how secret detention can facilitate the practice of torture or inhuman and degrading treatment, and how the practice of secret detention has left an indelible mark on the victims, and on their families as well."115. In respect of secret detention in general, the experts stated the following:"Secret detention violates the right to personal liberty and the prohibition of arbitrary arrest or detention. No jurisdiction should allow for individuals to be deprived of their liberty in secret for potentially indefinite periods, held outside the reach of the law, without the possibility of resorting to legal procedures, including habeas corpus. Secret detainees are typically deprived of their right to a fair trial when State authorities do not intend to charge or try them. Even if detainees are criminally charged, the secrecy and insecurity caused by the denial of contact to the outside world and the fact that family members have no knowledge of their whereabouts and fate violate the presumption of innocence and are conducive to confessions obtained under torture or other forms of ill-treatment. At the same time, secret detention amounts to an enforced disappearance. If resorted to in a widespread or systematic manner, secret detention may even reach the threshold of a crime against humanity.Every instance of secret detention is by definition incommunicado detention. Prolonged incommunicado detention may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and may in itself constitute such treatment. The suffering caused to family members of a secretly detained (namely, disappeared) person may also amount to torture or other form of ill-treatment, and at the same time violates the right to the protection of family life.It is not only States whose authorities keep the detainee in secret custody that are internationally responsible for violations of international human rights law. The practice of proxy detention', involving the transfer of a detainee from one State to another outside the realm of any international or national legal procedure (rendition' or extraordinary rendition'), often in disregard of the principle of non-refoulement, also involves the responsibility of the State at whose behest the detention takes place. The Geneva Conventions, applicable to all armed conflicts, also prohibit secret detention under any circumstances."116. The experts also referred to State complicity in secret detention:"The experts also address the level of involvement and complicity of a number of countries. For purposes of the study, they provide that a State is complicit in the secret detention of a person when it (a) has asked another State to secretly detain a person; (b) knowingly takes advantage of the situation of secret detention by sending questions to the State detaining the person, or solicits or receives information from persons kept in secret detention; © has actively participated in the arrest and/or transfer of a person when it knew, or ought to have known, that the person would disappear in a secret detention facility, or otherwise be detained outside the legally regulated detention system; (d) holds a person for a short time in secret detention before handing them over to another State where that person will be put in secret detention for a longer period; and (e) has failed to take measures to identify persons or airplanes that were passing through its airports or airspace after information of the CIA programme involving secret detention has already been revealed."117. In relation to Poland, the report (in paragraphs 114-118 stated, among other things, the following:"114. In Poland, eight high-value detainees, ... were allegedly held between 2003 and 2005 in the village of Stare Kiejkuty. ... The Polish press subsequently claimed that the authorities of Poland during the term of office of President Aleksander Kwasniewski and Prime Minister Leszek Miller had assigned a team of around a dozen' intelligence officers to cooperate with the United States on Polish soil, thereby putting them under exclusive American control and had permitted American special purpose planes' to land on the territory of Poland. The existence of the facility has always been denied by the Government of Poland and press reports have indicated that it is unclear what Polish authorities knew about the facility.115. While denying that any terrorists had been detained in Poland, Zbigniew SiemiÄ…tkowski, the head of the Polish Intelligence Agency in the period 2002-2004, confirmed the landing of CIA flights. Earlier, the Marty report had included information from civil aviation records revealing how CIA-operated planes used for detainee transfers landed at Szymany airport, near the town of Szczytno, in Warmia-Mazuria province in north-eastem Poland ... between 2003 and 2005. Marty also explained how flights to Poland were disguised by using fake flight plans.116. In research conducted for the present study, complex aeronautical data, including data strings' retrieved and analysed, have added further to this picture of flights disguised using fake flight plans and also front companies. For example, a flight from Bangkok to Szymany, Poland, on 5 December 2002 (stopping at Dubai) was identified, though it was disguised under multiple layers of secrecy, including charter and sub-contracting arrangements that would avoid there being any discernible fingerprints' of a United States Government operation, as well as the filing of dummy' flight plans. The experts were made aware of the role of the CIA chief aviation contractor through sources in the United States. The modus operandi was to charter private aircraft from among a wide variety of companies across the United States, on short-term leases to match the specific needs of the CIA Air Branch. Through retrieval and analysis of aeronautical data, including data strings, it is possible to connect the aircraft N63MU with three named American corporations, each of which provided cover in a different set of aviation records for the operation of December 2002. ... Nowhere in the aviation records generated by this aircraft is there any explicit recognition that it carried out a mission associated with the CIA. Research for the present study also made clear that the aviation services provider Universal Trip Support Services filed multiple dummy flight plans for the N63MU in the period from 3 to 6 December 2002. In a report, the CIA Inspector General discussed the interrogations of Abu Zubaydah and Abd al-Rahim al-Nashiri. Two United States sources with knowledge of the high-value detainees programme informed the experts that a passage revealing that enhanced interrogation of al-Nashiri continued through 4 December 2002" and another, partially redacted, which stated that: However, after being moved, al-Nashiri was thought to have been withholding information;', indicate that it was at this time that he was rendered to Poland. The passages are partially redacted because they explicitly state the facts of al-Nashiri's rendition details which remain classified as Top Secret'....118. ...While the experts appreciate the fact that an investigation has been opened into the existence of places of secret detention in Poland, they are concerned about the lack of transparency into the investigation. After 18 months, still nothing is known about the exact scope of the investigation.The experts expect that any such investigation would not be limited to the question of whether Polish officials had created an extraterritorial zone' in Poland, but also whether officials were aware that enhanced interrogation techniques' were applied there."(ii) The 2010 UN Observations118. The UN Human Rights Committee, in its Concluding Observations on the sixth periodic report of the Republic of Poland of 27 October 2010 ("the UN 2010 Observations") stated, among other things, the following:"15. The Committee is concerned that a secret detention centre reportedly existed at Stare Kiejkuty, a military base located near Szymany airport, and that renditions of suspects allegedly took place to and from that airport between 2003 and 2005. It notes with concern that the investigation conducted by the Fifth Department for Organized Crime and Corruption of the Appellate Prosecution Authority in Warsaw is not yet concluded ...The State party should initiate a prompt, thorough, independent and effective inquiry, with full investigative powers to require the attendance of persons and the production of documents, to investigate allegations of the involvement of Polish officials in renditions and secret detentions, and to hold those found guilty accountable, including through the criminal justice system. It should make the findings of the investigation public."(f) The CHRGJ Report119. On 9 March 2010 the Centre for Human Rights and Global Justice ("the CHRGJ") disclosed its report entitled "Data string analysis submitted as evidence of Polish involvement in US Extraordinary Rendition and secret detention program" the CHRGJ Report. A more detailed description of the report is included in paragraphs 99-102 of the Statement of facts in the case of Al Nashiri v. Poland (no. }]28761/11).The CHRGJ Report analysed in detail data strings relating to flight N379P on which, as the applicant submits, he was transferred by the CIA from the Polish territory to Guantànamo Bay in Cuba (see also paragraphs 48-49 above). It confirmed that a Boeing 737 aircraft, registered with the US Federal Aviation Administration as N313P, embarked from Dulles Airport in Washington, D.C. on Saturday 20 September 2003 at 22h02m GMT and undertook a four-day flight circuit, during which it landed in and departed from six different foreign countries. These six countries, in the order in which the aircraft landed there, were: the Czech Republic, Uzbekistan, Afghanistan, Poland, Romania and Morocco. The aircraft flew from Rabat, Morocco to Guantànamo Bay on the night of Tuesday September 23, 2003, landing in the morning of Wednesday 24 September 2003.(g) The 2010 Amnesty International Report120. On 15 November 2010 Amnesty International published a report entitled "Open secret: Mounting evidence of Europe's complicity in rendition and secret detention". It compiled the latest evidence of European countries' complicity in the CIA's programmes in the context of the fight against terrorism in the aftermath of the 11 September 2001 attacks in the USA.A detailed rendition of the passages relating to Poland is included in paragraph 104 of the Statement of facts in the case of Al Nashiri v. Poland.8. Parliamentary inquiry in Poland121. In November-December 2005 a brief parliamentary inquiry into allegations that a secret CIA detention site existed in the country was conducted in Poland. The inquiry was conducted by the Parliamentary Committee for Special Services (Komisja do Spraw SÅ‚użb Specjanych) behind closed doors and none of its findings have been made public. The only public statement that the Polish Government made was at a press conference when they announced that the inquiry had not turned up anything "untoward". According to the 2006 Marty Report (see paragraph 92 above), "this exercise was insufficient in terms of the positive obligation to conduct a credible investigation of credible allegations of serious human rights violations".The 2011 Marty Report, in paragraph 40, also refers to the Polish parliamentary inquiry, stating, among other things that "the only public indication given by the commission was that there ha[d] not been any CIA prisons in Poland" (see also paragraph 104 above),9. Criminal investigation in Poland(a) Information supplied by the Polish Government in their written observations filed in the case of Al Nashiri v. Poland122. On 11 March 2008 the Warsaw Regional Prosecutor (Prokurator OkrÄ™gowy) opened an investigation against persons unknown (Å›ledztwo w sprawie) concerning secret CIA prisons in Poland.On 11 July 2008 the investigation was taken over by the State Prosecutor (Prokurator Krajowy) and referred to the 10thDepartment of the Bureau for Organised Crime and Corruption.123. On 1 April 2009 the case was transmitted to the Warsaw Prosecutor of Appeal (Prokurator Apelacyjny) and was then conducted by the 5th Department for Organised Crime and Corruption of the Warsaw Prosecutor of Appeal's Office until 26 January 2012. On that date, by virtue of the Prosecutor General's decision, the case was transferred to the Kraków Prosecutor of Appeal (see also paragraph 144 below).124. Referring to the scope of the investigation, the Government stated that "the subject matter ... covers, among others, alleged commission of offences under Article 231 § 1 of the Criminal Code and other, relating to alleged abuse of powers by public officials, acting to the detriment of the public interest, in connection with the alleged use of secret detention centres located in the territory of Poland by the Central Intelligence Agency to transport and illegally detain persons suspected of terrorism.125. In the course of the investigation evidence form 62 persons have been heard. The case-file comprises 21 volumes. Procedural steps taken in the investigation include "checking information contained in Dick Marty's reports drafted for the Council of Europe in 2006-2007 and in the report of the European Parliament concerning possible detention in the territory of Poland of persons suspected of terrorism, as well as the use against them of illegal methods of interrogation". The Government add that the actions taken by the prosecution "concerned procedural verification of the circumstances of the landings, while omitting border and customs control in the Szymany airport used by the [CIA]".Border Guard and Customs Service officers, the staff of the Szymany airport, air traffic controllers, one member of the European Parliament's Commission that had carried out an inquiry into the circumstances surrounding the CIA operations in Poland at the relevant time were heard as witnesses. The PANSA provided materials concerning aircraft landings in the Szymany airport (see also paragraph 129 and 137 below).126. According to the Government, "due to the complex legal nature of the proceedings, opinion of experts on public international lawhas been sought in order to provide answers to questions concerning international law regulating the establishment and running of detention centres for persons suspected of terrorism and the status of such persons".127. The Polish authorities addressed two requests for legal assistance to the US authorities.The first request for information concerning the landing of US aircraft in the Szymany airport, dated 18 March 2009, was declined by the US Department of Justice on 7 October 2009 (see also paragraph 134 below).The second request, dated 9 March 2011, concerned, according to the Government's description, "the need to perform acts with the participation of two persons who have the status of injured persons and whose representatives declared their participation in the preparatory proceedings". One of those persons was Mr Al Nashiri. As of 5 September 2012 (the date on which the Government filed their observations) there had been no answer to the request (see also paragraph 139 below).128. The Polish authorities also requested the ICRC for information but their request was denied, as the Government state, "on the grounds of the ICRC's procedure". The US lawyers for Mr Al Nashiri and for the second injured party were heard but gave fragmentary depositions, invoking the principle of client-lawyer confidentiality.(b) Facts as supplied by the applicant and supplemented by the facts related in the case of Al Nashiri v. Poland129. The investigation concerning secret CIA prisons in Poland started on 11 March 2008.On 9 April 2009, in response to a request for information by the Helsinki Foundation for Human Rights, the Head of the Bureau for Organised Crime and Corruption in the State Prosecutor's Office (Biuro ds. PrzestÄ™pczoÅ›ci Zorganizowanej i Korupcji Prokuratuy Krajowej) stated that:"...in reference to the Resolution of the European Parliament regarding the investigation into the alleged use of European countries by the Central Intelligence Agency of the United States to transport and illegally detained prisoners, the 5th Department for Organized Crime and Corruption of the Warsaw Prosecutor of Appeal is conducting the investigation in the case AP V DS. }]37/09 regarding the abuse of power by State officials, namely the offence defined in Article 231 § 1 of the Criminal Code.The proceedings were commenced on March 11, 2008 by the Warsaw [Regional Prosecutor].In the course of the investigation there are conducted open and classified procedural activities.Within open activities, landings of American aircrafts in Szymany airport were confirmed. The information quoted in your letter, sourced by the web site, does not correspond with the exact wording of the prosecutor. The prosecutor possesses information over the report of the International Red Cross.The interest of the Helsinki Foundation for Human Rights of the case is obvious. Nevertheless the presentation of prosecutor's intentions, due to the fact that a wide range of procedural activities is classified, is not possible,Taking into consideration the above, it is not possible to indicate the precise date of the termination of the investigation."130. On an unspecified date in 2009, in responding to a questionnaire from the UN experts working on the 2010 UN Joint Study (see paragraphs 113-117 above), the Polish authorities stated the following:"On 11 March 2008, the [Regional] Prosecutor's Office in Warsaw instituted proceedings on the alleged existence of so-called secret CIA detention facilities in Poland as well as the illegal transport and detention of persons suspected of terrorism. On 1 April 2009, as result of the reorganization of the Public Prosecutor's Office, the investigation was referred to the Warsaw [Prosecutor of Appeal]. In the course of investigation, the prosecutors gathered evidence, which is considered classified or secret. In order to secure the proper course of proceedings, the prosecutors who conduct the investigation are bound by the confidentiality of the case. In this connection, it is impossible to present any information regarding the findings of the investigation. Once the proceedings are completed and its results and findings are made public the Government of Poland will present and submit all necessary or requested information to any international body."131. On 21 September 2010 the Polish lawyer for Mr Al Nashiri filed an application with the Warsaw Regional Prosecutor, asking for an investigation into his detention and treatment in Poland to be opened.132. On 22 September 2010, Mr J. Mierzewski, the investigating prosecutor from the 5th Department of Organised Crime and Corruption of the Warsaw Prosecutor of Appeal's Office, informed the applicant's lawyer that there was no need to conduct a separate investigation into the circumstances surrounding the applicant's detention and treatment as those matters would be dealt with in the investigation initiated on 11 March 2008.133. In October 2010, the prosecutor granted injured party (pokrzywdzony) status to Mr Al Nashiri.134. In a letter of 15 December 2010, replying to the Helsinki Foundation for Human Rights' request for information, the prosecution authorities revealed that on 18 March 2009 the Warsaw Prosecutor of Appeal had submitted a legal assistance request to the US judicial authorities regarding the investigation. On 7 October 2009 the US Department of Justice informed the Polish authorities that under Article 3(1)© of the Mutual Legal Assistance in Criminal Matters Agreement ("the MLAT") signed by the United States and Poland, the request had been refused and American authorities considered the case closed (see also paragraph 127 above). The Prosecutor did not publicly disclose the content of the mutual assistance request due to "State secrecy".135. On 16 December 2010 the Polish lawyer for the applicant and Interights filed an application with the Warsaw Regional Prosecutor, reporting the commission of offences against the applicant during his detention in Poland and asking for him to be granted injured-party status in the investigation. The application described how the applicant had been transferred by the CIA from Thailand to Poland on 5 December 2002 and related the conditions of his detention and his ill-treatment over the subsequent months, during which as he alleged he had been held in Poland. It included evidence of the roles played by the CIA agents and Polish officials in the HVD Programme in Poland, the rendition flights that transported the applicant into and out of Poland, the names of private companies involved in those flights, and the operation of the CIA secret prison site in Stare Kiejkuty.136. On 11 January 2011 the Warsaw Regional Prosecutor granted the applicant injured-party status in the investigation.137. In a letter of 4 February 2011 addressed to the Helsinki Foundation for Human Rights the prosecutor provided information about certain procedural actions undertaken in the course of the investigation. According to the letter, steps undertaken by the prosecutors were related to the verification of the landings without clearance by the CIA planes between 2002 and 2003 at the Szymany airport. Evidence from Border Guard and Customs Service officers had been heard, as well from employees of the Szymany airport, flight controllers and a member of the European Parliament's Commission that carried out an inquiry into the circumstances under investigation (see also paragraph 125 above).138. Apparently on 17 February 2011 the Warsaw Deputy Prosecutor of Appeal, Mr R. Majewski, and the investigating prosecutor, Mr J. Mierzewski, ordered that evidence from three experts on public international law on the issues relevant for the investigation be obtained (see also paragraph 126 above). The contents of the order, questions and answers from the experts were not made public but were leaked to the press and published by Gazeta Wyborcza daily on 30 May 2011. There was no subsequent disclaimer from the prosecution. The text of the prosecutors' order read, in so far as relevant, as follows:"... Order on obtaining a report appointing an expert in the case concerning abuse of power by State officials, i.e. the offence defined in Article 231 and others [of the Criminal Code].Robert Majewski, Warsaw Deputy Prosecutor of Appeal, and Jerzy Mierzewski, the prosecutor of the Warsaw Prosecutor of Appeal's Office, decided to appoint a team of experts on the public international law, i.e. ... in order to establish whether [text of ten questions reproduced below]."The questions and corresponding answers, as published in Gazeta Wyborcza, read as follows:"1. Are there any provisions of public international lawregulating the setting up and functioning of facilities for holding persons suspected of terrorist activity? If so, which of them are binding on Poland?Answer: Terrorism is a criminal offence and is prosecuted on the basis of legal provisions of a given State.2. Are there any provisions of public international law permitting a facility for holding persons suspected of terrorist activity to be excluded from jurisdiction of the State on whose territory such a facility has been set up? If so, which of them are binding on Poland?Answer: There are no such provisions. The setting up of such a facility would amount to a breach of the Constitution and an offence against sovereignty of the R[epublic of] P[oland].3. In the light of international public law, what is the legal status of an arrested person suspected of terrorist activity?Answer: This is regulated by criminal law of a given country unless [a person] is a prisoner of war.4. What influence on the legal status of an arrested person suspected of terrorist activity does have the fact that the arresting authority considers that the person belongs to the organisation described as Al-Khaida?Answer: It does not have any importance. Membership in Al-Khaida is not separately regulated by any provisions of criminal law.5. In the light of the provisions of international public law, what importance for the legal status of an arrested person suspected of terrorist activity does have the fact that the person has been arrested outside the territory which is occupied, seized or on which an armed conflict takes place?Answer: Such arrest can be qualified as unlawful abduction.6. Can a person suspected of terrorist activity, arrested outside the territory of the Republic of Poland and subsequently held in a facility in Poland, be characterised as a person referred to in Article 123 § 1-4 of the Criminal Code [in general, persons protected by the 1949 Geneva Conventions: members of armed forces who have laid down their arms, wounded, sick, shipwrecked, medical personnel, priests, prisoners of war or civilians from the territory occupied, seized or on which an armed conflict takes place or other persons protected by international law during an armed conflict]?Answer: Such a qualification is justified.7. Is the holding of a person suspected of terrorist activity, in respect of whom no charges were laid and no detention order has been issued under Polish law, in breach of public international law in terms of deprivation of liberty or the right to an independent and impartial court or limitations on his defence rights in criminal proceedings?Answer: Yes and it should be prosecuted.8. In the light of international public law, can the methods of interrogation and treatment of detainees suspected of terrorist activity as described in the CIA documents supplied by the injured parties be considered torture, cruel or inhuman treatment of these persons?Answer: Yes. Torture is prohibited both under international conventions and the laws of specific States.9. Are the regulations issued by the USA authorities in respect of persons considered to be engaged in terrorist activity and their application in practice in conformity with the provisions of international humanitarian law ratified by Poland?Answer: No. These regulations are often incompatible with international law and human rights.10. If possible, [the experts are asked] to make an assessment of compatibility of regulations concerning combating terrorism issued by the USA authorities after 11 September 2011 with the provisions of public international law relating