El-Masri v. Macedonia (Former Yugoslav Republic of Macedonia)

Key Judgment

Legal Relevance

Keywords: Obligation to Prevent | Deprivation of Liberty | Judicial Protection | State/Non-State Agents | Effective Remedy | Duty to Investigate | Duty to Prosecute | Extraterritorial Jurisdiction | Reparations

Themes: Characteristics of the Crime | Related Crimes

The Court reiterated that torture does not only cover the infliction of physical pain but also includes mental suffering caused by creating a state of anguish and stress by means other than bodily assault, highlighting the fact that the victim’s prolonged confinement created in him a permanent state of vulnerability and anxiety owing to the uncertainty about his fate. In line with its previous case law, the Court held that the victim was subjected to “extraordinary rendition”, meaning an extrajudicial transfer of persons from one State to another for the purposes of detention and interrogation outside the legal system, which puts them at risk of torture or cruel, inhuman or degrading treatment. The Court also held that any deprivation of liberty must not only be effected in conformity with national law but must equally be in keeping with the purpose of protecting the individual from arbitrariness, adding that the unacknowledged detention of an individual is a most grave violation of their right to liberty and security. The Court further confirmed that, once assumed control over an individual, the authorities have a duty to account for their whereabouts, to take effective measures to safeguard them against the risk of disappearance and to conduct a prompt and effective investigation into allegations that a person has disappeared after being taken into custody.

Since the victim's confinement and detention were not authorised by a court and he did not have access either to a lawyer, to his family or to a representative of his government, the Court concluded that the applicant was subjected to unacknowledged and incommunicado detention. The Court also found particularly grave that the applicant was initially deprived of his liberty in a place of detention falling outside any judicial framework, highlighting how this added to the arbitrariness of his deprivation of liberty. Finally, the Court held that the obligation to respect the right to liberty and security entails both the duty to refrain from its active infringement and the duty to take appropriate steps to protect an individual against unlawful actions of others. For this reason, the Court found the respondent State responsible for the whole period of arbitrary detention of the applicant, including for the period where he was placed outside of the State's jurisdiction. The Court concluded that the applicant’s “enforced disappearance”, although temporary, was characterised by an ongoing situation of uncertainty and unaccountability, covering the entire period of his captivity. Finally, the Court held that the obligation to provide an effective remedy under Article 13 is broader than obligations under Article 5 to conduct an effective investigation into the disappearance of a person.