November 27, 2020
Tobias Thienel, associated fellow at the Walther Schücking Institute of International Law at the University of Kiel, Germany, and lawyer with Weissleder Ewer*
A classic staple of the cop show genre has the detective ‘roughing up’ a stubborn defendant in order to produce a confession. This somewhat hackneyed story line never had much to do with the law, because it is clear that evidence that the police have obtained by serious ill-treatment is inadmissible in court. But the story becomes more original if it is not the police, but a relative of a victim or a rival criminal that commits the violence and obtains evidence. The law is rather less clear on whether evidence obtained through ill-treatment by private persons is also inadmissible. The European Court of Human Rights has now answered this question in Ćwik v. Poland. The answer is very much in the affirmative.
Facts of the case
The facts of Ćwik v. Poland make for fascinating reading, provided you like crime stories. The applicant stands convicted of trafficking large amounts of cocaine from Honduras and Colombia to Poland. It appears from the trial judgment that the applicant got involved in drug trafficking with a number of associates in the U.S. and Poland. Initially, the Polish court found, the associates had worked with the drug cartel. Later, the applicant and an associate known as K.G. had gone over the head of another associate known as L.P. to deal directly with the cartel, and L.P. had ran afoul of the cartel. The cartel had tried to have L.P. killed, but had hired a killer who was really an agent of the U.S. Federal Drug Enforcement Administration. L.P. had been arrested, but later released. He had then engaged a gang in Poland to get the cocaine that the applicant and K.G. had obtained directly from the cartel. Eventually, the gang had tried to kidnap the applicant and K.G., but only got hold of K.G. They had tortured K.G. and recorded part of their ‘interrogations’ on tape. Polish police had obtained the audio tape when liberating K.G. from his captivity. The tape was used in the prosecution of the applicant. The trial court also made use of the tape. The applicant’s appeals in Poland were unsuccessful. Before the European Court of Human Rights, the applicant claimed a violation of the right to a fair trial under Article 6 (1) of the ECHR.
The First Section of the European Court of Human Rights delivered its judgment on 5 November 2020. The Court began its assessment by noting that ‘although the application raises issues under Article 6 § 1 of the Convention, the principles developed under Article 3 are highly relevant for the examination of the applicant’s complaint under Article 6 § 1’ (para. 59). The Court therefore recalled its case law on the absolute nature of the prohibition of torture and inhuman or degrading treatment under Article 3. It also recalled that Article 3 obliges States to protect people from prohibited ill‑treatment administered by private individuals (para. 65).
As to Article 6 (1), the Court further recalled that the admission into evidence of statements obtained by torture or other ill-treatment in breach of Article 3 rendered a trial unfair. It also recalled a distinction in its case law with regard to the admission of so-called ‘real evidence’ (e.g. a dead body or a weapon) found as a result of a coerced statement: the admission of real evidence that has been obtained as a direct result of torture was always unfair, but the admission of real evidence found as a direct result of (only) inhuman or degrading treatment was only unfair if the evidence had had a bearing on the outcome of the proceedings (Gäfgen v. Germany [GC], paras. 173, 178). All this applied not only where the victim of the relevant ill-treatment was also the defendant against whom the resulting evidence would be used, but also where the evidence would be used against third parties (Ćwik, para. 77). Moreover, given that the case at hand went beyond the existing case law, the Court also set out ‘the reasons for the prohibition on torture evidence in the Convention system and international law’ as follows (Ćwik, para. 74, quoting Othman (Abu Qatada) v. United Kingdom, para. 264):
‘International law, like the common law before it, has declared its unequivocal opposition to the admission of torture evidence. There are powerful legal and moral reasons why it has done so.
It is true, …, that one of the reasons for the prohibition is that States must stand firm against torture by excluding the evidence it produces. Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence obtained by torture would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.
There are, however, further and equally compelling reasons for the exclusion of torture evidence. As Lord Bingham observed in A and others no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair, offensive to ordinary standards of humanity and decency and incompatible with the principles which should animate a tribunal seeking to administer justice.” The Court agrees with these reasons: it has already found that statements obtained in violation of Article 3 are intrinsically unreliable (Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed, experience has all too often shown that the victim of torture will say anything – true or not – as the shortest method of freeing himself from the torment of torture.
More fundamentally, no legal system based upon the rule of law can countenance the admission of evidence – however reliable – which has been obtained by such a barbaric practice as torture. The trial process is a cornerstone of the rule of law. Torture evidence damages irreparably that process; it substitutes force for the rule of law and taints the reputation of any court that admits it. Torture evidence is excluded to protect the integrity of the trial process and, ultimately, the rule of law itself.’
Against this background, the Court declined to examine whether the treatment meted out to K.G. in the instant case amounted to torture, but it did hold that the treatment fell within Article 3 of the Convention. Accordingly, the Court found that the State’s positive obligation under Article 3 applied (para. 84). Most significantly, however, the Court considered in relation to the rule of inadmissibility of evidence resulting from ill-treatment within the meaning of Article 3 that this ‘principle is 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 was inflicted by private individuals’ (para. 89). The Court thus rejected any distinction between ill-treatment at the hands of public officials and similar ill-treatment by private persons. This led to a finding of a violation of Article 6 (1) of the Convention. Two judges provided a joint dissenting opinion which will be examined more thoroughly in the next section.
The result of the judgment in Ćwik v. Poland is that the exclusionary rule on statements obtained by torture or inhuman or degrading treatment applies even if the ill-treatment had been suffered at the hands of private persons. As the dissenting opinion shows, this was not a foregone conclusion. Domestic legal orders differ on the point. For example, in German law, the preponderant – but by no means the only – view appears to be that the exclusionary rule applies in this manner where torture and similar acts are concerned. However, the Polish courts appear to have had no misgivings in the case of Mr Ćwik. Moreover, it appears that the Fifth Amendment to the U.S. Constitution does not necessarily command inadmissibility in a case such as Ćwik (see Turner at p. 113). The question is therefore why the Court in Ćwik held that Article 6 of the ECHR did. The two dissenting judges wrote that the majority had not made the argument for an analogy with the case of ill-treatment by public authorities. In their view, the exclusionary rule served a dual function with regard to evidence coerced by the authorities. First, the rule was to prevent the authorities participating in criminal proceedings from manipulating the trial, and secondly, the rule was to eliminate any temptation for the authorities to commit violence. Neither rationale could explain the application to ill-treatment by private persons.
While these objections are justifiable as far as they go, they do not meet the reasoning of the majority head-on. While the bare statement in para. 89 of the judgment does not contain any reasoning, the conclusion of the majority appears to be based on a dual approach.
First, the Court clearly pointed out the reasons of the exclusionary rule on which it based the extension to ill-treatment by private persons. In this regard, the Court highlighted that ‘States must stand firm against torture’ and that proscribed evidence ‘taints the reputation of any court that admits it’ (see above). In this value judgment, the Court in Othman (Abu Qatada) and now in Ćwik followed the judgment of the House of Lords in A and Others v. Secretary of State for the Home Department (No. 2). There, the value judgment against torture required the inadmissibility of evidence obtained by torture by a foreign State. That scenario is similar to the one under consideration here, in that the foreign State is not a party to the proceedings in which the evidence is adduced, and any discouraging effect of the exclusionary rule on a foreign torturer is likely to be slight (unless the torture is committed at the behest of the forum State, but that would engage the direct responsibility of the forum State). The dual function accepted by the two dissenting judges therefore does not exhaust the scope of the exclusionary rule.
Secondly, the majority in Ćwik emphasized the positive obligations of the State under Article 3. While this has not been made explicit in the judgment, it is plausible that a State cannot on the one hand be bound to prevent and prosecute acts of torture and inhuman or degrading treatment, and on the other hand be free to derive support from such acts in judicial proceedings. Also – and this has been made explicit in the judgment – it is of no relevance to the protection under Article 3 whether ill-treatment is administered by a public official or a private individual (para. 66). Accordingly, the effect of the value judgment from Article 3 on the application of Article 6 cannot differentiate between these cases either.
The Court left undecided whether ill-treatment by private persons may be classified as torture (as to that debate, see Article 1 of the Convention against Torture and e.g. CAT General Comment No. 2, para. 18, McGregor and Clapham and Gaeta, as well as Article 7 (2) (e) of the Rome Statute). Because of its distinction between torture and inhuman or degrading treatment with regard to their effect on the admissibility of real evidence (Gäfgen; see above), the Court accordingly also left to one side whether real evidence obtained by private ill-treatment would have to be ruled inadmissible. The analysis in Ćwik therefore also does not extend to the case in which a defendant is physically brought to justice through ill-treatment by private parties (cf. the facts in Krombach v. France (dec.)).
In sum, the judgment in Ćwik has clarified an important point at the intersection of the law of evidence with the fundamental rejection of torture, itself an important feature of the rule of law. The case is sure to receive a good deal of attention in many European jurisdictions and beyond. For the police and prosecuting authorities, the case means that they will not only have to refrain from serious ill-treatment themselves, but also be circumspect in receiving evidence from third parties. This is as it should be. The reasoning of the Court in Ćwik is arguably more driven by legal values than by a narrow focus on settled rules and their immediate effect on the authorities. But with a value as strong as the prohibition of torture and inhuman or degrading treatment, this cannot be faulted.
*Tobias Thienel has written about the inadmissibility of evidence obtained by torture in the European Journal of International Law in 2006, in the Journal of International Criminal Justice in 2006 and in Meisenberg and Stegmiller (eds.), The Extraordinary Chambers in the Courts of Cambodia (The Hague: T.M.C. Asser Press, 2016). He is grateful to Dr Paul Behrens for valuable comments.