PROOF IN RENDITION CASES BEFORE THE EUROPEAN COURT OF HUMAN RIGHTS

Abstract

This article examines issues of proof in relation to the three most important rendition cases that have been decided by the European Court of Human Rights (El-Masri, Al-Nashiri and Nasr Ghali). It seeks to illustrate how the Court managed to overcome the very specific difficulties of proof inherent in such cases. When states cooperate extra-legally to capture, imprison and remove suspects to locations for interrogation they do so under ‘cover of darkness’ and go to considerable lengths to cover their tracks. When challenged before an international tribunal they either refuse to cooperate or simply deny the allegations. The article reveals that the European Court established the facts by relying on its well tested approach to evidentiary issues that has been developed over many years in its extensive case law. The Court did not employ any special rules for these particular types of cases although it relied on an inherent flexibility of approach and appreciation that paid special regards to the context of the cases, the serious implications for the states of the finding of a breach of the ECHR and the inherent difficulties of proof facing the victims of rendition.