ECHR ruling of November 05, 2020 in the case "Cwik v. Poland" (aplication No. 31454/10).
In 2010, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Poland.
In the case, an aplication was successfully considered about the inclusion in the case of evidence obtained as a result of ill-treatment of a third person by private individuals, without the participation or tacit consent of representatives of state authorities. The case involved a violation of the requirements of paragraph 1 of article 6 of the Convention.
THE CIRCUMSTANCES OF THE CASE
During the judicial review of the criminal case against the applicant on charges of committing drug-related crimes, evidence obtained as a result of ill-treatment of a third person, K. G., by private individuals was attached to the case.
Regarding compliance with article 6, paragraph 1, of the Convention. The European Court has already concluded in previous cases considered by it that the inclusion of statements obtained under torture or as a result of other ill-treatment in violation of Article 3 of the Convention as evidence in criminal proceedings made the entire proceedings in the case as a whole unfair. A common feature for all these cases was the participation of representatives of state authorities in the process of obtaining these testimonies from the accused from third parties in the case.
The European Court had to consider a question that had not arisen before: whether the above-mentioned rule could be applied in the present case, when the relevant information was obtained from a third party as a result of ill-treatment carried out by private individuals, and there was no evidence of participation or connivance in the incident on the part of representatives of State authorities.
(a) Whether the information was obtained from K. G. as a result of ill-treatment prohibited by article 3 of the Convention. There was no need to determine whether the treatment to which K. G. was subjected could be qualified as torture within the meaning of article 3 of the Convention. The materials provided to the European Court, namely the verdict of the court of first instance, left no doubt that the actions against K. G. had reached the necessary level of cruelty required for the qualification of actions under Article 3 of the Convention. Therefore, the information was obtained from K. G. as a result of ill-treatment by private individuals, and the positive State obligation provided for in article 3 of the Convention was applied to this treatment.
(b) A complaint of a violation of article 6, paragraph 1, of the Convention. The Court of Appeal did not consider the applicant's complaint, filed on the merits of a violation of article 3 of the Convention, that the information (record) in question in the case was obtained as a result of ill-treatment by private individuals, and also did not consider the related issue of the unreliability of such evidence.
The use in criminal proceedings of evidence obtained as a result of treating a person in a manner contrary to article 3 of the Convention, regardless of whether such actions can be qualified as torture, inhuman or degrading treatment, makes the entire trial automatically unfair and contrary to article 6 of the Convention. This conclusion does not depend on the evidentiary value of the information received and on whether their use was decisive for finding the defendant guilty.
The mentioned principle is equally applicable to the inclusion in the case of evidence obtained from a third party as a result of ill-treatment prohibited by article 3 of the Convention, if such treatment took place by private persons, regardless of the qualification of this treatment.
The Court of Appeal agreed with the use as evidence of the information received from K. G. in violation of the absolute prohibition of ill-treatment established by article 3 of the Convention. In doing so, the Court of Appeal failed to take into account the consequences of its decision from the perspective of the applicant's right to a fair trial, guaranteed by article 6, paragraph 1, of the Convention. The Supreme Court of Poland rejected the applicant's appeal as manifestly unfounded and did not provide any grounds for its decision. Consequently, the proceedings in the case as a whole were unfair.
The case involved a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 8,000 euros in compensation for non-pecuniary damage, the claim for compensation for material damage was rejected.