By Matteo Mastracci, PhD researcher at Koç University
On 5 November 2020, the European Court of Human Rights issued its judgment in the case of Ćwik v. Poland. The question, which until now had never been addressed by the Court, was whether the exclusionary rule disqualifying evidence obtained through ill-treatment (also known as ‘torture evidence’) could be applied even when inflicted by private individuals, in the absence of involvement or acquiescence of state officials. The Court, in a pioneering ruling, found a violation of Article 6 of the Convention by confirming that the use in criminal proceedings of evidence obtained in breach of Article 3 renders the proceedings as a whole automatically unfair. Indeed, the Court ruled that admission into the trial of torture evidence is always excluded, irrespective of its classification.
The facts of the case
In 2008, the applicant, a Polish national, was sentenced to 12 years in prison for international drug trafficking. His conviction by Polish authorities was based on various pieces of evidence including a transcript of utterances recorded on an audio cassette secured by the police in the course of a search and seizure operation.
The content of the audio-recorded material, in particular, consisted of a third-party statement resulting from a criminal episode of kidnapping and torture inflicted by private individuals, members of a criminal gang part of “settling of accounts between gangsters”.
In 2010, the applicant lodged an application against Poland with the European Court of Human Rights alleging a violation of his right to a fair trial under Article 6 § 1 of the Convention. He contended that national courts should not have admitted into evidence the transcript of a recorded conversation obtained through ill-treatment of a third party inflicted by members of a criminal gang. A decade later the Court ruled on this rather unique case.
The Court’s judgment
The State’s positive obligations under Article 3
On a preliminary note, the Court recalled the importance of the principles developed under Article 3 of the Convention for its assessment under Article 6 in this case. The absolute and non-derogatory nature of the prohibition of torture and inhuman or degrading treatment or punishment entails the State’s positive obligation to guarantee to all those who fall within its jurisdiction the protection of the right referred to in Article 3. This specific obligation, on the one hand, cannot be limited solely to cases of ill-treatment inflicted by state actors (M.C. v. Bulgaria, § 151), but on the other hand, it may have a different scope depending on whether the violence is perpetrated by private individuals or state agents (Beganović v. Croatia, § 69).
In any event, as the extensive case-law of the Court on private contexts has shown, the prohibition of torture and inhuman or degrading treatment or punishment protects every person regardless of the source of violence that has reached a minimum level of severity. Since Article 3 of the Convention is an absolute right, and thus it cannot be weighed against other rights (see the Grand Chamber’s finding in Gäfgen v. Germany, § 176), the right prevails, among other things, over the securing of a criminal conviction. Finally, the Court recalled the General Comment no. 20 of the Human Rights Committee on Article 7 of the International Covenant on Civil and Political Rights (ICCPR) establishing the State’s duty to afford everyone protection through legislative and other measures against the acts prohibited by Article 7, which includes people acting in a private capacity.
The unfairness of the proceeding as a whole under Article 6
Having clarified that Article 6 ECHR does not prescribe rules on the admissibility of evidence which are entirely left to the domestic legislators, the Court stepped into the core of the case. The main question was whether the proceeding as a whole, including how the evidence was obtained, was fair. For evaluating the fairness of the proceedings, several elements might be examined, including the decisiveness of the evidence on the outcome of the case. Be that as it may, the evidence obtained in violation of Article 3 (one of the cores and absolute rights under the Convention) would, nonetheless, raise serious issues even if its admission was not decisive for the outcome of the proceeding.
By recalling the case of Othman (Abu Qatada) v. the United Kingdom, where it has been ruled that “no legal system based upon the rule of law” can permit the admission of evidence achieved “by such barbaric practice as torture”, the Court took a clear stand against the admission of torture evidence for both legal and moral reasons. The Court, then, reiterated its settled case-law according to which the admission of statements obtained through ill-treatment by public officials in breach of Article 3 renders the proceedings as a whole unfair regardless of the decisiveness of the evidence in securing the conviction of the accused. Furthermore, the Court reaffirmed that those principles are equally applicable in the case of third party victims.
Torture evidence inflicted by private individuals
The real novelty of the legal question in the case at hand was whether the exclusionary rule for the admission in national court proceedings of the so-called tortured evidence was equally applicable in the case of ill-treatment inflicted to third party victims by private individuals. For the very first time in a Strasbourg case, neither the defendant nor the state officials were directly involved in criminal misconduct. After reiterating that the evidence admitted to trial leaves no doubt that the treatment falls within the scope of Article 3 (indeed, the national authorities themselves classified the fact as “torture” or “assault”), the Court confirmed the existence of the State’s positive obligation in this respect.
Because the evidence obtained in violation of Article 3, regardless of its probative value and its decisiveness in securing the conviction of the accused, renders the proceeding as a whole automatically unfair, the Court applied this general principle to the case. Indeed, the Court found, by five votes to two, a violation of Article 6 § 1 of the Convention since the exclusionary rule disqualifying evidence contra Article 3 was equally applicable to the admission of torture evidence where private individuals had inflicted ill-treatment, irrespective of its classification.
Joint dissenting opinion of judges Wojtyczek and Pejchal
As an introductory remark, the two dissenting judges argued that in their understanding of many external legal sources it becomes clear that ill-treatment committed by a public official or other person acting in an official capacity is fundamentally different from that of private individuals. They noted that, inter alia, the wording of Article 1 § 1 of the Convention against Torture, was a deliberate choice of the drafters aware of the diversity between the two situations: “a breach of the law is always much more serious when committed by public officials because it erodes the State and corrodes the rule of law”. Also, they challenged the Court’s underreckoning of both the principles of free legislation on evidence in judicial proceedings and free assessment of evidence inherent to the national authorities’ domain. The latter they considered to be part of the modern criminal systems of continental Europe.
In any event, the sharpest criticism introduced by judges Wojtyczek and Pejchal was directed against the use by the Court of the analogy discourse in its legal reasoning. Starting from the assumption that analogy requires a thorough explanation of the reasons why a similarity can be drawn between different situations, they concluded that the Court failed to provide plausible arguments explaining the similarity between ill-treatment by state officials or private individuals. Conversely, they claimed that similarity could not be traced for, at least, three arguments: the protection of a trial’s integrity, the safeguarding of the rule of law, and the consequences stemming from the applicant’s right to remain silent and not to incriminate himself. Thus, the dissenting judges came to the conclusion that the Court’s reasoning was somewhat based upon an abusive reference to the analogy where judicial fiat ended by replacing the rule of law.
The exclusion of evidence in international human rights law, as noted by Zeegers, has often been based on the use of many vague standards such as ‘fairness’, ‘fundamental principles of justice’, or ‘shocks to the conscience of the court’. In this respect, Currie spoke of an area that is still largely grey. At the same time, the Court’s historical approach on the admissibility of evidence has been very cautious and reluctant to interfere with the prerogatives left to the domestic authorities in purely procedural matters. Indeed, from the very first ruling, Schenk v. Switzerland, the Court has developed an argumentative methodology that has remained substantially unchanged to date. Article 6 ECHR does not establish any rules on the admissibility of evidence as the matter is essentially dependent on domestic legislation. Nonetheless, the Court is always called to examine whether evidence has been presented in such a manner as to guarantee a fair trial. Thus, the way in which evidence is obtained under domestic rules and procedures may, in some exceptional circumstances, render the proceedings as a whole unfair, thereby allowing the Court to intervene successfully and holding a national court judgment contrary to the ECHR.
More crucially, then, the Court while reaffirming the ipso facto unreliability of evidence obtained in violation of Article 3 ECHR (as in Othman v. the United Kingdom), has extended the scope of application of the exclusionary rule. In doing so, contrary to what was argued by the dissenting judges, the Court does not seem to have employed a mere analogy tool but rather a teleological interpretation of the rights in the Convention. The ‘absolute’ prohibition of ill-treatment renders the proceedings as a whole automatically unfair when the evidence gathered is contrary to Article 3 of the Convention. Furthermore, this occurs regardless of whether such ill-treatment is inflicted by a public official or by a private individual. Torture evidence is, thus, a priori excluded not only to protect the integrity of the process but, also and above all, to preserve the rule of law itself as ‘no legal system based upon the rule of law can countenance of evidence obtained by such a barbaric practice as torture’ (Othman v. the United Kingdom, § 264).