Ćwik v. Poland

Information Note on the Court’s case-law 245

November 2020

Ćwik v. Poland - 31454/10

Judgment 5.11.2020 [Section I]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Admission of evidence obtained through ill-treatment of a third party by private individuals, without involvement or acquiescence of State actors : violation

Facts – During the applicant’s trial for drug-related offences, evidence was admitted which had been obtained as the result of ill-treatment inflicted upon a third party (K.G.) by private individuals.

Law – Article 6 § 1 : The Court had already held in a series of cases that admission of statements, obtained as a result of torture or of other ill treatment in breach of Article 3, into evidence in criminal proceedings render the proceedings as a whole unfair. A common thread of all those cases had been the involvement of State agents in obtaining impugned statements from the accused or from a third party.

The question before the Court, which had not arisen before, was whether the above-mentioned rule might be applicable to the instant case in which information had been obtained from a third party as a result of ill-treatment inflicted by private individuals, even where there had been no evidence of involvement or acquiescence of State actors.

(a) Whether the information obtained from K.G. against his will was regarded as a result of ill-treatment prohibited by Article 3

It was not necessary to determine whether the treatment to which K.G. had been subjected might be qualified as torture within the meaning of Article 3. The material that was available to the Court, in particular the trial court’s judgment, left no doubt that the treatment inflicted on K.G. had attained the necessary threshold of severity to fall within the scope of Article 3 of the Convention. Accordingly, the information extracted from K.G. had been obtained as a result of ill-treatment administered by private individuals and the State’s positive obligation arising under Article 3 was applicable to this ill-treatment.

(b) Complaint under 6 § 1

The Court of Appeal had not addressed the applicant’s argument raised in substance under Article 3 that the impugned recording had been obtained as a result of ill-treatment suffered at the hands of private individuals and the related question of the unreliability of such evidence.

The use in criminal proceedings of evidence obtained as a result of a person’s treatment in breach of Article 3 – irrespective of whether that treatment is classified as torture, inhuman or degrading treatment – had made the proceedings as a whole automatically unfair, in breach of Article 6. This was irrespective of the probative value of the evidence and irrespective of whether its use had been decisive in securing the defendant’s conviction.

The above-mentioned principle was equally applicable to the admission of evidence obtained from a third party as a result of ill-treatment proscribed by Article 3 when such ill-treatment had been inflicted by private individuals, irrespective of the classification of that treatment.

The Court of Appeal had accepted the use in evidence of the information extracted from K.G. that had been obtained in breach of the absolute prohibition of ill-treatment guaranteed in Article 3. By doing so, the Court of Appeal had failed to take into account the implications of its decision from the point of the view of the applicant’s right to a fair trial under Article 6 § 1 of the Convention. The Supreme Court had dismissed the applicant’s cassation appeal as manifestly ill-founded and had not provided any reasons for its decision. Consequently, the proceedings had been rendered as a whole unfair.

Conclusion: violation (five votes to two).

Article 41: EUR 8,000 in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.

(See also H.L.R. v. France [GC], 24573/94, 29 April 1997, Jalloh v. Germany [GC], 54810/00, 11 July 2006, Information Note 88; Gäfgen v. Germany, 22978/05, 1 June 2010, Information Note 131; Othman (Abu Qatada) v. the United Kingdom, 8139/09, 17 January 2012, Information Note 148; J.K. and Others v. Sweden [GC], 59166/12, 23 August 2016, Information Note 199; Guide on Article 6 of the European Convention on Human Rights – Right to a fair trial (criminal limb))

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This summary by the Registry does not bind the Court.

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