Despite extensive allegations and evidence that the United States Central Intelligence Agency (CIA) operated secret facilities in several foreign countries, Poland is the only country that has launched a domestic criminal investigation into the matter.
Through domestic proceedings, Poland is investigating allegations that the country hosted a CIA “black site,” or secret detention center, which could potentially violate both domestic Polish law and international law such as Article 3 of the European Convention on Human Rights (ECHR), along with its implementing legislation, prohibiting torture. However, the investigation has been ongoing since March 2008 with little progress.
In response to Guantanamo detainee Abu Zubaydah’s allegations that he was subjected to violent interrogation techniques at a CIA site in northern Poland, the European Court of Human Rights (ECtHR) has once again asked Poland to provide more information about its cooperation with the United States and its participation in the CIA black site program.
Zubaydah filed a complaint against Poland with the ECtHR on March 25, 2013. Polish officials deny hosting any black sites and claim potential interference into domestic proceedings as the justification for not cooperating further with the ECtHR. This is Poland’s second refusal to provide the Court with information on this issue within a year. Poland also refused to answer the Court’s questions regarding information on the sites last September during a case against it brought by Abd al-Rahim Al-Nashiri, who was allegedly detained and tortured by the CIA in Poland from December 5, 2002 to June 6, 2003.
In Al-Nashiri v. Poland, the ECtHR questioned whether Poland has “complied with its duty under Article 3 of the Convention to carry out an ‘effective and thorough’ investigation into the allegations of torture, other forms of ill-treatment prohibited by this provision, and incommunicado detention alleged to have occurred on its territory in connection with the CIA High Value Detainees Programme . . . .” Human Rights officials such as Human Rights Commissioner Nils Muiznieks and NGOs like Open Society and Human Rights Watch claim that the domestic investigation is ineffective and there remains a potential violation of Article 3 of the ECHR.
An allegation of a violation of Article 3 – which prohibits torture or inhuman or degrading treatment or punishment – requires an effective investigation by the State in question. Failure to conduct an appropriate investigation could be a violation of Article 13, which provides the right to an effective remedy before a national authority. The United Nations (U.N.) has stated that alleged violations of “gross human rights violations and serious violations of humanitarian law,” such as Article 3, require an effective investigation. Furthermore, victims and their relatives must have “effective access to the investigative process,” and relevant information must be disclosed to the general public. These protections are essential to the victim’s right to truth. The U.N. Special Rapporteur on Torture, Juan Méndez, has commented that “[t]he blanket invocation of State secrets . . . such as the United States secret detention, interrogation and rendition programme or third-party intelligence . . . prevents effective investigation and renders the right to a remedy illusory” and thus also incompatible with article 2 of the International Covenant on Civil and Political Rights (ICCPR), which protects the right to an effective remedy of violations of the ICCPR.
The Court has frequently found for petitioners when it deems domestic investigations ineffective and has stated that domestic remedies must be sufficient in “practice as well as in theory.” Domestic remedies cannot be inadequate, ineffective, or illusory. Thus, Zubaydah and Al-Nashiri may argue that they cannot exhaust domestic remedies in Poland because the Polish Government is unable to offer actual examples of applicable remedies being effective in similar cases. Although the investigation in Poland accompanies a criminal case, the slow pace of the current proceedings is withholding information necessary to pursue a domestic civil case.
The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) visited Poland in June 2013, but did not focus on the investigation with regards to that visit or in its 2009 report on Poland. Because there are now two cases before the Court on the issue of CIA black sites in Poland, Poland faces increased pressure to make progress in its own investigations. It is unclear how much longer Poland will be able to excuse itself from providing information based on its own proceedings while those proceedings are making little headway.