About the Author: Anjana Gopinath, Final Year, B.A. L.L. B. (Hons.), Symbiosis Law School, Pune.
Case Analysis of El Masri v. The Former Yugoslav Republic of Macedonia
Case Number: 39630/09
Date of Decision: Dec. 13, 2012.
Judicial Body: European Court of Human Rights
The ECtHR, in 2012, held that the Former Yugoslav Republic of Macedonia had violated Articles 3, 5, 8 as well as 13 of the European Convention of Human Rights (ECHR) when it detained a German national unlawfully, subjected him to torture and interrogation, handed him over to the U.S. CIA for continuous ill-treatment, and failed to carry out a proper investigation.
Facts of the Case:
A German Citizen named Khaled-El-Masri was travelling from Ulm (a city in Germany) to Macedonia in December 2003, when he was stopped and interrogated at the Serbia-Macedonia border by a border official of FYROM (Former Yugoslav Republic of Macedonia), for over seven hours. Following this, he was taken to a hotel in Macedonia and was confined for 23 days. During his confinement, he was threatened with bodily injury in case he tried to leave and was interrogated repeatedly. The interrogators also tried to pressurise him into admitting that he was a part of Al-Qaeda. His requests to communicate with German Authorities were also denied.
After 23 days, El-Masri was instructed to say that he had been treated well, without being harmed in any way, and that he would be flown back to Germany soon. This statement of his was recorded in a film. Later, he was blindfolded and handcuffed, following which he was taken to the Skopje Airport in Macedonia. He was later taken to a room in the airport, where he was tortured by severe beating and was left without any clothes, which they forcibly removed. He was confined with shackles and chains around his ankles and writs, and his head was covered with a bag, which made it difficult to breathe.
Later, he was taken to an aeroplane by using force and was then transferred to Afghanistan, where he was imprisoned and tortured for four months in a small, dark and dirty cell. Here, El-Masri was interrogated a few times by whom he identified as CIA agents. His requests to communicate to an official from the German Government were continuously ignored. In May 2004, El-Masri, blindfolded and handcuffed, was taken from the cell to an aeroplane. His passport and belongings were transferred to him upon landing and were later accompanied by three Albanian Officials. Then, he was taken to Tirana Airport in Albania, from where he was transferred to a plane to Germany.
Macedonia, in response to the query put by the Secretary of Council of Europe, claimed that El-Masri was interrogated on the grounds of “suspected possession of forged documents”, and stated that he was released on the very first day of his interrogation.
The Macedonian authorities, however, did not mention about any consultation with the US CIA, as well as any details about transmitting information about El-Masri to the CIA. Nevertheless, numerous inquiries by European states about allegations on extraordinary renditions brought forward evidence in regards to claims put forward by El-Masri.
El-Masri claimed that his rights under the European Convention of Human Rights were violated. This included Article 3, 5 8, 10, as well as article 13 of the Convention.
The issues of the case El Masri v. The Former Yugoslav Republic of Macedonia, before the European Court of Human Rights can be stated as follows:
1) Whether the treatment to which the Applicant has been subjected to during the detention at the Hotel in Skopje amounted to torture under Article 3 of the European Convention of Human Rights?
2) Whether the detention of the Applicant at the Skopje Hotel and airport amounted to arbitrary detention under Article 5 of ECHR?
3) Whether the Applicant’s right to private and family life as provided by Article 8, was violated by the FYROM?
4) Whether the Applicant’s right to freedom of expression as provided by Article 10, was violated by FYROM?
5) Whether the Applicant’s right to an effective remedy as provided by Article 13 was violated by FYROM?
Since Former Yugoslav Republic of Macedonia (Now, North Macedonia) is a member of the Council of Europe and has ratified the Convention for the Protection of Human Rights and Fundamental Freedoms (now known as the European Convention on Human Rights), any decision given is binding on the States, and it is obligatory on part of the State to execute the same. Additionally, the Applicant too is a national of an E.U. Member State, Germany. The rules applicable in the present case are:
1) Article 3 of the European Convention of Human Rights:
This Article of the ECHR provides that no person shall be subjected to torture, inhumane or degrading treatment/punishment.
2) Article 5 of ECHR:
Article 5 of the ECHR sets out the Right to liberty and security of person. It states that no person shall be deprived of his liberty and security except in situations which are provided in the provision itself and in accordance with a procedure established by law. The situations which are permissible as stated above are mentioned in Clause (1) of the Article, and are the following:
(a) When a person is kept in lawful detention following the conviction by a court which is competent to do so;
(b) When a person is arrested/ detained in order to enforce the order of a court or in order to fulfil any obligation prescribed by law;
(c) When a person is arrested/detained in order to bring him before competent legal authority or upon reasonable suspicion of commission of an offence or as a necessary precaution to prevent the commission of an offence or to flee after the Commission of the same;
(d) When a minor is detained on the basis of a legal order for supervision on educational purposes or lawful detention for bringing him before a competent legal authority;
(e) When a person is detained lawfully in order to prevent the spread of infectious diseases or the detention of individuals with unsound mind/alcoholics/drug addicts/vagrants;
(f) When a person is lawfully detained or arrested in order to prevent unlawful entry to a country or against whom an action is being taken with respect to deportation or extradition.
Clause (2) of the Article provides that the person who is arrested shall be informed of the reasons in doing so and that the same shall be made in a language he comprehends.
Clause (3) provides that any person who has been arrested or detained for the purpose of situations mentioned in Clause 1 (c), shall be brought before the concerned competent legal authority without any delay. It also states that the person shall also be entitled to trial within a reasonable time or to release pending trial, the latter on the condition that he guarantees to appear for the trial.
Clause (4) of the Article states that any person who has been deprived of his liberty by means or arrest or detention is entitled to move for legal proceedings, and the lawfulness of the same shall be decided a court in a speedy manner. The person would also be released in case the detention is not lawful.
The last Clause to the article states that any person who has been arrested or detained in contravention to the provisions of the article shall have an enforceable right to compensations.
3) Article 8 of ECHR:
Article 8 states that every individual has the right to respect for his private and family life, his home and correspondence and that this right shall not be violated by a public authority. The exceptions to the same are when the right is interfered with, in accordance with the law, and is necessary for keeping with the interests of national security, public safety, economic well-being, prevention of crime or disorder, for moral and health purposes, or in order to protect the rights and freedoms of other individuals.
4) Article 10 of ECHR:
Article 10 of ECHR guarantees the right to freedom of expression. The right as guaranteed by the article includes the freedom to hold opinions, as well as the right to receive and give information without inference from the public authority. However, the article also states the duties and responsibilities that come along with the rights, which includes national security, public safety and morals among many.
5) Article 13 of ECHR:
This article provides for the right of an individual to obtain an effective remedy in case of violation of the rights and freedoms as set out in the ECHR. The person shall have an effective remedy before a national authority even if the violation was committed by a person having an official capacity.
The Prohibition of Torture forms an important part of International Law and is also an indispensable concept with respect to Human Rights. States who are found violating the same are held responsible on the basis of International law, even outside the scope of their territories. In addition to this, States are also required to provide personal safety to an individual within its borders, and it is another rule that States are bound to respect and have the responsibility to follow.
This judgement by the European Court of Human Rights has gained immense importance as it is the first of its kind. It was the first time an International court condemned the practice of renditions and secret detentions by the CIA and considered the same to be relating to enforced disappearance as well as cruel, inhumane treatment. In addition to the finding that the
Applicant was tortured by the CIA, the Court also observed that Macedonia was responsible for illegally detaining the Applicant, and turning him over into the hands of the CIA.
The European Court of Human Rights (ECtHR) found that the Former Yugoslav Republic of Macedonia (FYROM) has violated Article 3, Article 5, Article 8 as well as Article 13 of the ECHR, in regards to their action of incommunicado detention of El-Masri, the physical abuse on him, letting his mistreatment by handing him over to the U.S CIA as well as the refusal to conduct a proper investigation.
With respect to the first issue, that is, Article 3 of the Convention, it was observed by the Court that the Respondent State was responsible and liable for their actions of inhuman and degrading treatment of the Applicant while kept in detention in the hotel at Skopje. It was also stated that the Respondent was responsible for the torture inflicted on the Applicant in the Airport at Skopje. The Court also found out that the investigation Macedonia conducted was ineffective, and that it failed to conduct an adequate and independent investigation.
In regards to the second issue on Article 5, it was held by the Court that the detention of the
The applicant in the hotel and airport at Skopje as well as in Afghanistan was in complete disregard of Article 5, and amounts to a serious violation of the article. The Court made an important statement as to the treatment of suspects. It observed that irrespective of whether a person is a suspect of terrorism or not, the authorities did not have the power to arrest and detain them without the effective control by domestic courts.
Analysing the third issue with respect to Article 8 of ECHR, it was observed by the Court, that since the extrajudicial abduction of El-Masri, as well as detention, was not in accordance with the law, the authorities had technically deprived him of the “mutual enjoyment of members of a family of each other’s company” and has thus, violated his right to family life.
The Court found the contention of the Applicant under Article 10 to be manifestly ill-founded, as his complaint under Article 10 overlaps with the merits of Article 3. However, the Court agreed to the fact that the Applicant should have known the truth in regards to this detention. The Court in the present issue had rightly identified the same, as the reading of Article 10 gives the explanation that it protects the right to hold opinions and to collect and convey information as well as ideas without the interference of a public authority. The right to know the reasons for a person’s detention is covered under Article 5(2) and also under the merits of Article 3.Finally, with respect to the last issue, the Court agreed to the Applicant’s contention that the lack of effective legal remedy in the domestic system of Macedonia amounted to a violation of Article 13. The Court also added that the legal system should have identified people responsible for the ill-treatment of the Applicant and should have also awarded compensation to the Applicant for the same. The Court also made a significant statement. It stated that “the ineffectiveness of the criminal investigation undermined the effectiveness of any other remedy”.Additionally, the Court found the Macedonian Government liable for 60,000 Euros for the above-mentioned violations. The judgment created massive importance in conveying a message that such inhumane and degrading activities by States must be prevented regardless of whether the State engages in the same directly or with the help of other countries. It also lies as a severe criticise towards states that do not provide an adequate investigation into a matter as grave as suspicion in regards to terrorism.The only issue with respect to the present judgement falls within the fact that U.S.A does not form a party to the European Convention on Human Rights and for the same reason, is not subject to the jurisdiction of the ECtHR. Nevertheless, the judgement will leave a significant influence on the U.S. extraordinary rendition program owing to its international nature.Moreover, the judgement will also form a strong precedent in regards to cases pertaining to the extraordinary rendition programme, and also against torture by State authorities.
The impact of an International decision on questions pertaining to human rights is immense. Even when extrajudicial transfer and secret detention of those suspected with terrorist links were topics with wide recognition, no International tribunal had decided on the same until the ECtHR decided on the case of El Masri v. The Former Yugoslav Republic of Macedonia. When the European Court of Human Rights for the first time in history marked condemnation of torture and criticised the actions of Macedonia as well as the US CIA, it laid down a significant precedent in regards to International Human Rights. The decision not only addresses the prohibition of torture but also ignited the debate over the illegality and inhumanity in extraordinary rendition programmes. And for the same purposes, the present case becomes a vital bone of the structure of International Human Rights.
Disclaimer: Kindly note that the views and opinions expressed are of the author, and not Law Colloquy.
Journals and Articles:
1. Case of El-Masri v. The Former Yugoslav Republic Of Macedonia, Application No. 39630/09.
2. Jonathan Birchall, The European Court Rules: CIA Engaged in Torture of Victim of Mistaken Rendition, OPEN SOCIETY FOUNDATION (Dec. 13, 2012).
Conventions and Statutes:
1. European Convention on Human Rights as amended by Protocols Nos. 11 and 14 (2010).
 Jonathan Birchall, The European Court Rules: CIA Engaged in Torture of Victim of Mistaken Rendition, OPEN SOCIETY FOUNDATION (Dec. 13, 2012).  Darian Pavli, Mistaken Identity, Abuse and Rendition: Khaled El-Masri Finally has a day in court, THE GUARDIAN.