Dated 5.11.2020 decision issued by the ECHR on the Ćwik against Poland (ref.no. 31454/10). The peculiarity of the above decision, which was taken by a majority as Judges Woityczek and Pejchal were outvoted, lies in the fact that for the first time in the history of the ECHR the rule prohibiting the use of evidence obtained following abuse, when it is carried out by non-state bodies but by an individual, was implemented.

All previous decisions concerned evidence obtained as a result of abuse caused by civil servants. The validity of the above absolute prohibition rule extends, by virtue of this decision to all testimonies and evidence obtained after torture, inhuman or humiliating treatment, and, rightly so, to all other cases. It is thus that the ECHR increased the protective scope of Article 3 of the ECHR regardless the origin of the torture or inhuman treatment, that is, by a civil servant or an individual.

The applicant Grzegorz Ćwik, a Polish national was a member of a criminal organization involved in cocaine trafficking in Poland. In 1997, the applicant, together with another criminal organization member, namely K.G., attempted to operate independently of the drug-trafficking gang, by trafficking by themselves large cocaine quantities. The gang, having been informed of their aforementioned action, kidnapped K.G. and tortured him in order to collect information about cocaine and money which were not recovered by the gang, by even recording certain parts of his statement on an audio tape. The police, having been notified by the owner of the house where K.G. was detained, freed the hostage and surrendered the tape.

In 2008, the applicant was convicted by the national court for three cocaine trafficking charges and was sentenced to 12 years’ imprisonment based mainly on
the testimony of two members of the applicant's former criminal organization, who had decided to cooperate with the authorities, while the verdict on his guilt was additionally based on a copy of K.G.’ statements, which was taken from the recording made by the gang. The court found that these statements confirmed the participation of the applicant in the cocaine operation.

The applicant in his appeal, contested, amongst others, the use of the audio tape copy, arguing that the statements were obtained under torture and, therefore, were inadmissible on the grounds of the applicable in that case Criminal Procedure Code, pursuant to which, any evidence obtained under coercion is excluded.

However, the Court of Appeal dismissed his appeal, considering that the relevant rule could not be implemented on evidence obtained by individuals, as it only applies to evidence collected by the competent state authorities, conducting the investigation. Moreover, the Supreme Court, in its turn, also dismissed the applicant’s appeal as manifestly groundless.

The applicant thereafter, invoking the violation of article 6 par. 1 of the ECHR, argued that the domestic courts should not have accepted as evidence the copy of
K.G.’s statements, which were the result of torture and inhuman treatment he had suffered by the members of the criminal organization.

The Court, having repeated that the prohibition of torture and inhuman or humiliating treatment or punishment, as dictated by article 3 of the ECHR, is a fundamental value of democratic societies, stated that this principle is absolute which is not susceptible to any derogation. At the same time, it pointed out that article 3 protects all individuals from any kind of abuse, regardless of whether this was caused by a civil servant or an individual.

In view of the consideration above and having taken into account the established case law of the ECHR on this issue, concluded that Article 3 applies to the material facts of the present case, since also the national courts repeatedly referred to the treatment suffered by K.G. as torture or inhuman treatment.

The Court also repeated that it is led by a series of cases (indicatively A. v. UK, cited above, §§ 22-24, Z and Others, M.C. v. Bulgaria, cited above, § 148, 
Opuz v. Turkey, no. 33401/02, § 161, P.F. and E.F. v. the United Kingdom (dec.), no. 28326/09, 23 November 2010, § 38, Irina Smirnova v. Ukraine, no. 1870/05, § 73, 13 October 2016, V.C. v. Slovakia, no. 18968/07, § 119, ECHR 2011, V.K. v. Russia, no. 68059/13, § 172, 7 March 2017) to the formulation of a rule, pursuant to which, the admission of a statement made under torture, inhuman or humiliating treatment as evidence, contravenes article 3 of the ECHR, making the process unfair to its entirety.

Furthermore, it noted that its previous decisions had as common denominator that similar evidence were collected by civil servants. The question was whether this rule could also apply to evidence collected by third parties as a result of abuse, which, however, was caused by individuals.

The Court found that the admission of the audio copy as evidence in the criminal proceedings against the applicant had rendered the proceeding totally unfair, in
violation of the right to a fair trial (article 6 § 1) considering that the rule above applied to the present case. Thus, the Court of Appeal, which accepted the statements of K.G. as evidence, in violation of the absolute prohibition of abuse guaranteed by article 3, and without taking into account the arguments of the applicant on the unreliability of such evidence or the consequences of accepting these statements on his right to a fair trial under article 6 § 1ofthe Convention, violated the fairness of the proceedings.

Subsequently, Poland was ordered to pay the applicant the amount of 8.000 euro for non-pecuniary damage.