Acceptance of evidence obtained through torture or inhuman treatment by individuals violated the fair trial! First decision of the ECtHR on evidence of ill-treatment by individuals.
JUDGMENT
Ćwik v. Poland 05.11.2020 (app. no. 31454/10)
SUMMARY
The case concerned Mr Ćwik’s complaint that proceedings against him for drug-trafficking had been
unfair. He complained in particular that the courts had admitted in evidence statements by a third
party which had been obtained through torture by members of a criminal gang.
The Court found in particular that the domestic courts dealing with the applicant’s case had left no
room for doubt that the statements at issue had been obtained as a result of ill-treatment
prohibited by Article 3. The courts had, however, accepted the use in evidence of such statements to
convict the applicant, in breach of the absolute prohibition of ill-treatment guaranteed by Article 3
of the Convention, and without taking into account the implications from the point of view of his
right to a fair trial under Article 6 § 1 of the Convention.
The Court reiterated in particular its rule that admitting into evidence statements obtained as a
result of torture or ill-treatment prohibited by Article 3 of the Convention rendered the proceedings
as a whole unfair. This is the first case in which the Court has applied this rule in respect of evidence
obtained as a result of ill-treatment inflicted by private individuals. All previous cases have
concerned evidence obtained as a result of ill-treatment inflicted by public officials.
PROVISION
Article 6
PRINCIPAL FACTS
The applicant, Grzegorz Ćwik, is a Polish national who was born in 1968.
Mr Ćwik was part of a criminal gang involved in large-scale trafficking of cocaine into Poland. In
1997, when the applicant and another member of the gang, K.G., tried to start operating
independently, they failed to account for a large load of cocaine. The gang subsequently abducted
K.G. and tortured him to obtain information about the unaccounted for cocaine and money
belonging to the gang, recording certain statements on an audio cassette. The police, who had been
tipped off by the owner of the house where K.G. was being held, freed the hostage and seized the
audio cassette.
Some years later, in 2008, the applicant was convicted of three counts of cocaine-trafficking and
sentenced to 12 years’ imprisonment. The trial court mainly relied on statements by two members
of the applicant’s former criminal gang, who had decided to cooperate with the authorities. It also
relied, as supplementary evidence, on the transcript of K.G.’s statements taken from the gang’s
recording, ruling that it confirmed the applicant’s involvement in the cocaine business.
In his appeal, the applicant contested, among other things, the trial court’s use of the transcript,
arguing that the statements had been obtained by torture and were thus inadmissible under the relevant rule of the Code of Criminal Procedure which excluded any evidence obtained by coercion.
The Court of Appeal dismissed the challenge, finding that the rule applied exclusively to the
authorities conducting the investigation, and did not concern private individuals.
The Supreme Court dismissed the applicant’s cassation appeal in 2009 as manifestly ill-founded.
Relying on Article 6 § 1 (right to a fair trial), the applicant alleged that the courts should not have
admitted into evidence the transcript of K.G.’s statements obtained as a result of ill-treatment
inflicted by members of the criminal gang.
THE DECISION OF THE COURT…
The Court reiterated that the prohibition of torture and inhuman or degrading treatment or
punishment under Article 3 of the Convention was a fundamental value in democratic societies. Such
prohibition was absolute; no derogation from it was permissible. It also protected every person
irrespective of whether the ill-treatment had been administered by a public official or a private
individual.
In the light of those principles and the Court’s extensive case-law on the issue, the Court found that
Article 3 was applicable to the facts of the applicant’s case where the domestic courts had
repeatedly referred to K.G.’s treatment as “torture” or “assault”.
The Court further reiterated that a series of cases had led it to formulate the rule that admitting into
evidence statements obtained as a result of torture or ill-treatment prohibited by Article 3 of the
Convention rendered the proceedings as a whole unfair. The common thread in all those cases was
that such evidence had been obtained by public officials.
The question in the applicant’s case, which had not previously arisen before the Court, was whether
that rule could be transposed to evidence obtained from a third party as a result of ill-treatment
inflicted by private individuals.
The Court ruled that the same logic applied to the applicant’s case, where, as noted above, K.G.’s
statements had been obtained as a result of ill-treatment to which Article 3 was applicable. The
Court of Appeal had, however, accepted the use in evidence of such statements, in breach of the
absolute prohibition of ill-treatment guaranteed by Article 3, and without taking into account the
applicant’s arguments with regard to the unreliability of such evidence or the implications from the
point of view of his right to a fair trial under Article 6 § 1 of the Convention.
The Court therefore found that the admission of the transcript into evidence in the criminal
proceedings against the applicant had rendered the proceedings as whole unfair, in breach ofArticle 6 § 1.
Just satisfaction (Article 41)
The Court held that Poland was to pay the applicant 8,000 euros (EUR) in respect of non-pecuniary
damages.
Separate opinion
Judges Wojtyczek and Pejchal expressed a joint dissenting opinion which is annexed to the
judgment.
