FOURTH SECTION

Application no. 31454/10 Grzegorz ĆWIK against Poland lodged on 13 May 2010

STATEMENT OF FACTS

The applicant, Mr Grzegorz Ćwik , is a Polish national, who was born in 1968 .

He is currently serving a prison sentence in Sztum prison . He is represented before the Court by Mr Liwiusz Ilasz , a lawyer practising in Warszawa.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 18 February 2008 the Kraków Regional Court f o und the applicant guilty of smuggling, in 1995, 3 kg of cocaine which he had previously smuggled from Columbia from the United States ; of smuggling approximately 20 kg of cocaine to Poland from Columbia via Russia in 1996 and 1997 and of smuggling 20 kg of cocaine to Poland in 1997. The court held that the applicant had been acting in the context of an organised criminal group. He was convicted to seventeen years ’ imprisonment.

The court relied on evidence given by L.P. and M.W., two persons sentenced in other two sets of criminal proceedings, who had agreed to testify in the proceedings against the applicant and on judgments given in drug-trafficking cases against certain persons involved in the criminal group by courts of Honduras .

In the written grounds for its judgment the court further referred to a transcript of a cassette recording made by an organised criminal gang who had at some point in time kidnapped K.G., brother of the applicant ’ s brother ‑ in ‑ law. After the kidnapping K.G. had been tortured by the gang whose members were of the view that he had misappropriated certain amounts of cocaine and that he had failed to settle properly his accounts with the gang arising in the context of drug trafficking. The session of torture had been recorded by that gang, apparently for the evidence purposes. The court described in detail the circumstances of the kidnapping and multiple serious injuries suffered by K.G. It referred to these events as to “settling accounts by gangsters” ( gangsterskie porachunki ).

The applicant appealed. He submitted, inter alia , that the court had breached Article 171 of the Code of Criminal Procedure in that it had relied on the transcript of the confession made by K.G. This provision prohibited to use evidence obtained from persons acting under duress. The applicant argued that this evidence was manifestly unlawful by the mere fact that it had been extracted by torture, that the court had been aware of it and that it should therefore not have been used by the court. Its use made the proceedings against the applicant automatically flawed with fundamental lack of fairness as the court had extensively relied in its judgment on manifestly unlawful evidence.

By a judgment of 8 October 2008 the Kraków Court of Appeal partly amended the contested judgment. It was of the view that there were no grounds on which to accept that the applicant had acted in the context of an organised criminal group (“ w warunkach przestępczości zorganizowanej ”). It therefore amended the legal qualification of the offences committed by the applicant and reduced the prison sentence to eleven years.

The court further examined the ground of appeal based on the unlawful manner in which the evidence from K.G. ’ confessions made under torture had been obtained. It disagreed with the applicant ’ s view that this rendered the proceedings unfair and with the view of legal doctrine to this effect referred to by the applicant. It was of the opinion view that the prohibition to have recourse to evidence obtained under duress stipulated by Article 171 of the Code of Criminal Procedure was addressed only to the State authorities acting in the context of criminal investigation and proceedings. In the present case the impugned cassette had been found by the police when it had raided the place where K.G. had been kept in detention by the criminal gang. The transcript of the recording had reflected the true facts and therefore there was no reason for which it could not be relied on by the court.

The applicant lodged a cassation appeal with the Supreme Court. He reiterated, inter alia , his arguments submitted in his appeal against the first-instance judgment as to the unfairness of the proceedings originating from the use of evidence obtained as a result of torture inflicted by private parties.

By a decision of 26 November 2009 the Supreme Court dismissed the appeal. This decision did not contain written grounds.

B. Relevant domestic law

Article 171 § 1 of the Code of Criminal Procedure, in so far as relevant, reads:

It is prohibited (...) to use coercion or unlawful threats in respect of persons giving evidence.

Article 7 of that Code provides that bodies conducting criminal proceedings rely, in making their findings, on the evidence gathered in the proceedings seen as a whole; they are free in the assessment of that evidence, having regard to the principles of correct reasoning and to their general knowledge and life experience.

COMPLAINT

The applicant complains under Article 6 of the Convention that his right to a fair trial was violated, in particular, by the admission and reliance on evidence that had been obtained as a result of the confession extracted from a third party with the use of torture applied by the criminal gang.

He submits that the courts were well aware of the criminal origin of the confession and of the torture inflicted on the victim.

The State secured the applicant ’ s conviction in a criminal case on the strength of the evidence obtained in breach of the prohibition laid down by Article 3 of the Convention. As this provision is of a fundamental importance for the protection of the Convention values, this rendered the proceedings in the applicant ’ s case fundamentally and irredeemably unfair.

QUESTION TO THE PARTIES

Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? Reference is made to the fact that the courts relied, inter alia, on the evidence obtained by private parties as a result of torture against K.G. (see Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010 , mutatis mutandis ).