El-Masri v. Macedonia

Extraordinary Renditions: The European Spider’s Web

Macedonian police seized Khaled El-Masri from a bus and held him without charge for 23 days, accusing him of being a member of Al-Qaida. They drove him to Skopje airport and handed him to the CIA who flew El-Masri to Kabul as part of the U.S. “Extraordinary Rendition” program, where he was detained and tortured for four months. The government of Macedonia denies any involvement in his abduction. El-Masri seeks an investigation to discover the truth.

Facts

On December 31, 2003, Khaled El-Masri travelled from his home in Ulm, Germany, to Skopje in Macedonia, by bus. When he reached the border, Macedonian law enforcement officials confiscated his passport and detained him for several hours.

He was then transferred by armed officers in plainclothes to the Skopski Merak hotel in Skopje where he was detained for 23 days, guarded at all hours by rotating shifts of armed Macedonian officers. The curtains were closed day and night, and he was not permitted to leave the room. He was interrogated repeatedly, and told to admit that he was a member of Al Qaeda. His frequent requests to see a lawyer, translator, or German consular official, or to contact his wife, were denied. When he once moved toward the door and attempted to leave, three of his captors pointed pistols at his head and threatened to shoot him. He went on hunger strike to protest his innocence.

Handover to the CIA

On January 23, 2004, seven or eight Macedonian men entered the hotel room, handcuffed and blindfolded El-Masri and placed him in a car. He was driven to Skopje airport. He was removed from the vehicle, still handcuffed and blindfolded, and was led to a building. Inside, he was told that he would be medically examined. Instead, he was beaten severely from all sides with fists and what felt like a thick stick. His clothes were sliced from his body with scissors or a knife, leaving him in his underwear. He was told to remove his underwear and he refused. He was beaten again, and his underwear was forcibly removed. He heard the sound of photographs being taken. He was thrown to the floor. His hands were pulled back and a boot was placed on his back. He then felt a firm object being forced into his anus.

El-Masri was pulled from the floor and dragged to a corner of the room. His blindfold was removed. A flash went off and temporarily blinded him. When he recovered his sight, he saw seven or eight men dressed in black and wearing black ski masks. One of the men placed him in a diaper. He was then dressed in a dark blue short-sleeved track suit and placed in a belt which was connected to chains that attached to his wrists and ankles. The men put earmuffs and eye pads on him, blindfolded him, and hooded him.

Flight to Afghanistan

El-Masri was then marched to a waiting aircraft, with the shackles cutting into his ankles. Once inside, he was thrown to the floor face down and his legs and arms were spread-eagled and secured to the sides of the aircraft. He felt an injection in his shoulder, and became lightheaded. He felt a second injection that rendered him nearly unconscious.

The men dressed in black clothing and ski masks were members of a United States Central Intelligence Agency (CIA) “black renditions” team, who were operating under the U.S. “extraordinary rendition” program.

Flight records show that on January 23, 2004, a Boeing 737 business jet owned by a U.S.-based corporation, Premier Executive Transportation Services, Inc., operated by another U.S.-based corporation, Aero Contractors Limited, and registered by the U.S. Federal Aviation Administration as aircraft N313P, flew El-Masri from Macedonia via Baghdad to Afghanistan.

Four-Month Detention in Afghanistan

El-Masri was detained in conditions that were inhuman and degrading, beaten repeatedly by armed guards, subjected to violent and prolonged interrogations, force-fed following a 27-day hunger strike, and denied medical treatment. He was never charged, brought before a judge, granted access to German government representatives, or allowed to communicate with his family or anyone else in the outside world. He lost some thirty kilograms while in detention.

On May 28, 2004, El-Masri’s belongings were returned to him, including his passport, and he was flown on board a CIA-chartered Gulfstream aircraft with the tail number N982RK to a military airbase in Albania called Bezat-Kuçova Aerodrome. On arrival he was driven in a car for several hours and then let out and told not to look back. Almost immediately he was arrested by the Albanian authorities and driven to Mother Theresa Airport near Tirana where he was put on a commercial flight to Frankfurt. When he arrived at his home in Ulm, Germany, he learned that his wife and children had relocated to Lebanon, not having heard from him for more than four months.

Attempts to Seek Justice

Following a complaint from El-Masri, prosecutors in Munich opened an investigation into his allegations in June 2004. During the investigation, German officials verified from eye-witnesses that El-Masri did indeed travel to Macedonia by bus at the end of 2003, and that he had been detained shortly after entering that country. Prosecutors also confirmed from stamps in his passport that he entered Macedonia on December 31, 2003, and exited on January 23, 2004. They conducted scientific tests of his hair which proved that he had spent time in a South Asian country and had been deprived of food for an extended period. On January 31, 2007, the German Prosecutor filed indictments against thirteen CIA agents for their alleged involvement in the rendition.

The Parliamentary Assembly of the Council of Europe (PACE) and the European Parliament have undertaken inquiries into the collaboration of European governments with the CIA “extraordinary renditions” program. Their inquiries corroborated the details of El-Masri’s rendition in its entirety, including his secret detention and interrogation in Macedonia and Afghanistan.

In the United States, the American Civil Liberties Union (ACLU) sued the director of the CIA, unknown CIA agents and several corporations seeking compensation and declaratory relief for violations of El-Masri’s rights. The US courts dismissed the complaint on the basis of the “state secrets privilege” on the ground that “the very subject of the litigation is itself a state secret.” The U.S. Supreme Court declined to accept jurisdiction. In April 2008, the ACLU filed a complaint against the United States with the Inter-American Commission of Human Rights.

Proceedings in Macedonia

The government of Macedonia has been asked numerous times to explain what happened to  El-Masri: by the German prosecutors, Spanish prosecutors, PACE inquiry, and the European Parliament inquiry. On October 6, 2008, El-Masri filed a formal request with the Office of the Skopje Prosecutor to carry out a criminal investigation of his illegal detention and abduction and to bring criminal proceedings against those responsible. The request alleged that unnamed personnel of the Macedonian Ministry of the Interior were responsible for the unauthorized deprivation of his liberty and for the crime of torture or other cruel, inhuman, or degrading treatment or punishment. The prosecutor has taken no action.

On January 24, 2009, El-Masri filed a civil lawsuit for damages against the Macedonian Ministry of Interior in relation to his unlawful abduction and ill-treatment by MoI personnel in January 2004. The civil case is still pending at the Basic Court Skopje II. The civil proceedings, however, are not capable of providing effective remedies for the violation of El-Masri’s rights under the European Convention on Human Rights.

Open Society Justice Initiative Involvement

The Open Society Justice Initiative assisted Macedonian lawyer Philip Medarski to litigate the case through the Macedonian courts, and is acting as co-counsel before the European Court of Human Rights.

Arguments

Illegal Detention. The government of Macedonia is responsible for illegally detaining El-Masri for 23 days in the Skopski Merak hotel, without charge and without bringing him before a Judge, in violation of Art.5 ECHR (liberty and security).

Handing him to the CIA. Macedonia knew that by handing El-Masri to the CIA he would be flown to Kabul where he would be detained without trial and in conditions that were inhuman, in violation of Art.3 (torture) and Art.5 ECHR (liberty and security).

No investigation. There has never been a proper investigation into how El-Masri was detained in Skopje and then handed over to the CIA, in violation of the requirement to undertake an investigation into violations of Art.3 ECHR (torture).

No remedy. Despite many attempts, El-Masri has been unable to get a court in Macedonia to hear his case, in violation of Art.14 ECHR (discrimination).

The Right to Establish the Truth. Macedonia is hiding its role in the network of European governments that were secretly helping the CIA program. El-Masri and society as a whole have a right to know the truth.

Timeline

December 31, 2003.  El-Masri detained by Macedonian border guards and detained in the Skopski Merak hotel.

January 23, 2004. Transfer to the CIA at Skopje airport. Forcibly boarded on to CIA aircraft N313P, departing at 20:51 for Baghdad and Kabul. Detained for nearly 5 months.

May 28, 2004. Flown on CIA aircraft N982RK to Bezat-Kuçova Aerodrome in Albania. Arrested by border guards and taken to Mother Theresa Airport. Boards commercial flight for Frankfurt.

June 2004. Investigation opened by the German prosecutor.

January 22, 2006. First report by the Parliamentary Assembly of the Council of Europe (PACE) (Marty I)

June 15, 2006. Report by the European Parliament (Fava Inquiry)

January 31, 2007. German prosecutor indicts thirteen named CIA agents. They are never arrested.

June 7, 2007. Second report by PACE (Marty II).

April 9, 2008. Petition filed to Inter-American Commission of Human Rights by ACLU.

October 2008. Criminal complaint filed with local Macedonian prosecutor.

January 22, 2009. Civil claim for damages filed against the Macedonian government.

July 20, 2009. Letter of Introduction filed with the European Court of Human Rights.

Findings

The case is currently being considered by the European Court of Human Rights.

Resources

Case Documents
Criminal Complaint, September 15, 2008 (Available for download at bottom of page)

Civil Claim for Damages, January 22, 2009 (Available for download at bottom of page)

Application to ECHR (Available for download at bottom of page)

Related Cases
El-Masri v. U.S., Application to Inter-American Commission, ACLU, April 2008.

Related Links
European Centre for Constitutional Rights
American Civil Liberties Union

Additional Resources
Marty Report, PACE, 2006
Marty Report, PACE, 2007
Fava Inquiry Report, European Parliament, 2007
Extraordinary Rendition, ECCHR, 2009