Al Nashiri v. Poland, No. 28761/11, ECtHR (Fourth Section), 24 July 2014

Effective investigations as a tool for establishing the truth and maintaining public confidence in institutions. Procedural dimension of Art. 3 ECHR. Collective dimension of the right to the truth. Confidentiality of investigations that involve national-security issues. 

Art. 3 ECHR

1. The failure to carry out an effective investigation into the applicant’s allegations of serious violations of human rights, including torture, ill-treatment and undisclosed detention, breaches Article 3 of the Convention in its procedural aspect. Indeed, the lack of investigations capable of establishing the truth makes the general legal prohibition of torture and inhuman and degrading treatment ineffective in practice. 

2. The right to the truth regarding the relevant circumstances of the case does not belong solely to the victim of the crime and his or her family, but also to other victims of similar violations and to the general public, who has the right to know what has happened.

3. The confidentiality or secrecy of investigations does not allow authorities to refuse disclosure of relevant material to the parties in a proceeding. Even if there is a strong public interest in maintaining the secrecy of sources of information, in particular in cases involving the fight against terrorism, this need should be counterbalanced in such a way that a party can effectively defend its interests, without compromising national security.

4. Effective investigations of serious human rights violations may generally be regarded as essential in maintaining public confidence in authorities’ adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.

 (In the instant case, the applicant, a Saudi Arabian national suspected of terrorist offences, was captured in the United Arab Emirates and, among others, he was transferred to a secret CIA prison in Poland. On this basis, he lodged a criminal complaint on account of his arbitrary detention and ill-treatment. However, the investigation undertaken by the prosecuting Polish authorities had not been effective, since the nature of the CIA activities on Polish territory, as well as Poland’s complicity in those activities, had to remain a secret).