CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 5 novembre 2020

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margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sC3C29E73 { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase; list-style-position:inside } .sAA38361A { margin-top:14pt; margin-left:17.85pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; text-transform:uppercase }     FIRST SECTION CASE OF ĆWIK v. POLAND (Application no. 31454/10)     JUDGMENT   Art 6 § 1 (criminal) • Fair hearing • Proceedings rendered automatically unfair as a whole by admission of evidence obtained through ill-treatment of third party by private individuals • No evidence of involvement or acquiescence of State actors • Treatment reaching necessary threshold of severity to fall within scope of Art 3 • Court’s case-law on use of evidence obtained as a result of ill-treatment applicable to treatment inflicted by private individuals, irrespective of its classification   STRASBOURG 5 November 2020   FINAL   05/02/2021     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ćwik v. Poland, The European Court of Human Rights (First Section), sitting as a Chamber composed of:   Ksenija Turković, President ,   Krzysztof Wojtyczek,   Aleš Pejchal,   Pauliine Koskelo,   Tim Eicke,   Jovan Ilievski,   Raffaele Sabato, judges , and Abel Campos, Section Registrar , Having regard to: the application (no.   31454/10) against the Republic of Poland lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a dual Polish and United States national, Mr Grzegorz Ćwik (“the applicant”) , on 13 May 2010; the decision to give notice of the application to the Polish Government (“the Government”); the parties’ observations; Having deliberated in private on 10 March and 29 September 2020, Delivers the following judgment, which was adopted on the last ‑ mentioned date: INTRODUCTION 1.     In the criminal proceedings against the applicant, the courts admitted in evidence statements of a third party obtained as a result of ill-treatment inflicted by private individuals. The applicant complained under Article   6 §   1 of the Convention that admission in evidence of those statements had violated his right to a fair trial. THE FACTS 2.     The applicant was born in 1968. He was represented by Mr L. Ilasz, a lawyer practising in Warsaw. 3.     The Government were represented by their Agent, Ms   J.   Chrzanowska, and subsequently by Mr J. Sobczak, of the Ministry of Foreign Affairs. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. 5.     On 3 April 1998, during a search carried out for the purposes of investigation no.   VI Ds. 16/98 conducted by the Gdańsk Regional Prosecutor’s Office into the abduction and assault of an individual named K.G., the police secured an audio-cassette. A transcript of the recording was made on 27 August 1998. 6.     In October 2003 the Cracow Appellate Prosecutor’s Office, on the basis of materials received from the authorities in the United States of America, initiated an investigation in respect of an international criminal group involved in drug-trafficking. In May and August 2006 charges against the applicant were severed from the investigation opened in October 2003. 7.     On 31 August 2006 the prosecutor lodged a bill of indictment. The applicant was charged with three counts of trafficking or attempted trafficking of large amounts of cocaine into Poland. The prosecutor enumerated a number of items of evidence to be disclosed at the trial, including the transcript of the recording (see paragraph 5 above). 8.     On 18 February 2008 the Cracow Regional Court convicted the applicant of: (I)     attempted trafficking of 3 kg of cocaine from Honduras to Poland in September 1995; (II)     trafficking of some 50 kg of cocaine from Colombia to Poland via Russia between the end of 1996 and summer 1997; and (III)     trafficking of 20 kg of cocaine from the United States to Poland in May ‑ June 1997. 9.     The court held that in respect of offences nos.   II and III, the applicant had been acting as part of an organised criminal group. It sentenced the applicant to a cumulative penalty of twelve years’ imprisonment and a fine. 10.     The trial court made the following findings of fact. M.W. and L.P., dual Polish and United States citizens, had lived in the United States, where they had been doing business together. From the mid-1990s they had become involved in the trafficking of cocaine to Poland. L.P. had been responsible for organising cocaine from a Colombian drug cartel, and M.W. for its distribution. M.W. had supplied the cocaine to a gang, led by A.H. 11.     With regard to the first charge, the trial court established that in 1995 L.P. had engaged the applicant and K.G. in the cocaine business. Their first joint venture had been a trip to Honduras in September 1995. L.P. had gone there first followed by the applicant, K.G. and J.L. (the applicant’s sister and K.G.’s girlfriend). L.P. had received 3 kg of cocaine from the Colombian cartel. A next delivery for the applicant and K.G. had had to be made soon. However, the Honduran police had arrested L.P., K.G., J.L. and the applicant. They had spent seven months in detention. L.P. had organised their escape from detention, by bribing the guards. All of them had returned to the United States. Subsequently, they had been convicted by the Honduran courts of possession and trafficking in cocaine and sentenced to seventeen years and six months’ imprisonment. The applicant, K.G. and J.L. had intended to smuggle the cocaine to Poland. After L.P.’s return to the United States, he and M.W. had had a disagreement over getting third parties (the applicant, K.G. and J.L.) involved in the drug business. Nonetheless, they continued their activities in 1996 and 1997. 12.     With regard to the second charge, the trial court established that a few months after their return from Honduras, between the end of 1996 and summer 1997, L.P. had also become involved in the drug business with the applicant and K.G. They had wanted to recover losses made in connection with their arrest in Honduras. L.P. had been in direct contact mostly with the applicant, who had then passed the relevant information on to K.G. They had arranged that cocaine would be delivered by the cartel to a port in Colombia and then smuggled, with the assistance of some sailors, on board Russian ships bound for St Petersburg or Kaliningrad. There, K.G. had collected the cocaine and placed it in strongboxes. He had then smuggled it into Poland and sold it to the gang of “J”, which operated in Tricity ( Trójmiasto ) in the region of Pomerania. They had organised a number of deliveries using that route; the last one had been for 17 kg of cocaine. In total, some 50 kg of cocaine had been trafficked this way. 13.     With regard to the third charge, the trial court established that the last transaction between L.P. and the applicant and K.G. had concerned 20   kg of cocaine in May-June 1997. L.P. had organised a delivery of a large amount (115 kg) of cocaine from Colombia to the United States. It had been collected by M.W. L.P. had then ordered M.W. to deliver 20 kg of cocaine from this delivery to the applicant. The applicant had subsequently shipped 20   kg of cocaine to Poland. 14.     The applicant and K.G. had not paid L.P. for that shipment and the earlier one of 17 kg of cocaine. They had begun ordering cocaine directly from the Colombian cartel, excluding L.P. When L.P. had failed to pay the cartel for the above-mentioned two deliveries, the cartel had ordered L.P.’s assassination. However, the cartel had hired a killer who happened to be an agent of the United States Drug Enforcement Administration. L.P. had been arrested by the United States authorities in November 1997. 15.     M.W. had supplied the cocaine to A.H. and promised him that no one else in Poland would receive such high-quality cocaine. However, cocaine from the same source had begun to appear in the region of Pomerania in Poland, since the applicant and K.G. had also organised its supply separately into the country (see paragraph 12 above). 16.     L.P. had been released by the United States authorities sometime in 1998. M.W. had informed him that A.H. had been annoyed with the second supply channel of cocaine to Pomerania. L.P. had stated that the applicant and K.G. had owed him money. He had instructed M.W. to ask A.H., the leader of the gang, to recover the cocaine from the applicant and K.G. Eventually, A.H. had ordered that the applicant and K.G. be kidnapped and assassinated. 17.     The trial court established that K.G. had been abducted on 25   March 1998 in Gdynia by members of A.H.’s gang, but the applicant had managed to escape. K.G. had been taken to a house, where he had been put in a basement and tortured to force him to disclose the location of the strongboxes containing the cocaine and money. 18.     K.G. had had a pistol put to his head, had been pistol-whipped on his head, had had shots fired between his legs, had been kicked, and had had boiling water poured on him. Parts of this “interrogation”, attended by M.W., A.H. and some of his associates, were recorded on an audio-cassette on the orders of L.P. K.G. had at first resisted, but then he had indicated the location of the strongboxes in Gdańsk, Kaliningrad and St Petersburg. A.H.’s associates had found 7 kg of cocaine and 150,000 United States dollars. Subsequently, K.G. had been transferred to a house in W. The police had liberated him from there, having received information from the owner of the house, and had secured the audio-cassette. 19.     A medical examination had established, inter alia , that K.G. had had the following injuries: an abrasion on the skin of the neck, an abrasion on the right wrist, first and second-degree burns on the upper left hand, burns on the left side of the chest, scratches on the left ear, pains in the lumbar area, burns in the area of the left of the groin, haematomata on the left buttock and left thigh, and first and second-degree burns on the upper side of the left foot. 20.     During the investigation, the applicant had pleaded not guilty and had refused to testify. At the trial he had also pleaded not guilty. With respect to the first charge, he had stated that he had gone on holiday to Honduras and had not known why he had been arrested there. He had refused to answer questions from the prosecutor and the court. 21.     In respect of the applicant’s guilt, the trial court primarily relied on evidence given by L.P. and M.W., who had agreed to cooperate with the authorities and had testified at the trial. The court noted that their evidence together with other material, in particular the transcript of the “interrogation” of K.G. and the judgments given in drug-trafficking cases against the applicant and certain other persons by the courts of Honduras, formed a comprehensive, logical and coherent whole, which supported the findings of fact made by the court and, consequently, of the applicant’s guilt. 22.     The court analysed in detail the issue of credibility of L.P. and M.W. The credibility of their evidence, given firstly in the investigation and then at the trial, had been supported by the fact that they had revealed numerous offences committed by them over a period of many years, such as trafficking in significant amounts of cocaine to Poland, illegal money transfers and trafficking in cars from the United States to Poland. They had mostly incriminated themselves through their detailed evidence; their evidence had not been focused on the applicant. The court pointed out that L.P. and M.W.’s cooperation with the authorities had exposed them and their families to a risk of reprisals from criminal groups. It noted certain discrepancies between the evidence of L.P. and M.W., but observed that this had been obviously due to K.G.’s having been involved in the cocaine business with L.P. and not with M.W. In addition, given the extent and detailed nature of statements of both L.P. and M.W., certain discrepancies in their evidence did not undermine their credibility with regard to offences imputed to the applicant. 23.     The trial court noted that the transcript containing excerpts from K.G.’s “interrogation” was an important item of evidence confirming the credibility of L.P. and M.W. with regard to K.G.’s and the applicant’s involvement in the cocaine business, as well as confirming the applicant’s guilt in respect of all three offences. K.G. had confirmed in his recorded utterances L.P.’s evidence that the latter had proposed to the applicant and K.G. to organise the smuggling of cocaine from Honduras to Poland (offence no. I). Another declaration of K.G. had confirmed the evidence of L.P. and partly that of M.W. that L.P., while cooperating with the applicant and K.G., had trafficked cocaine by sea to Russia, where K.G. had collected it from sailors and trafficked it into Poland (offence no. II). Moreover, K.G. had confirmed L.P.’s evidence concerning the trafficking of 20 kg of cocaine from the United States to Poland (offence no. III). 24.     The court noted that in respect of the second and third offences, K.G. had not mentioned the applicant’s involvement in the respective offences. However, it observed, having regard to credible evidence of L.P. and M.W. in respect of those charges, that K.G. had intended to protect the applicant. The trial court referred to K.G.’s abduction and ill-treatment as the “settling of accounts between gangsters”. 25.     The trial court also noted that the kidnapping and torture of K.G had been the subject of a separate investigation in which, inter alia , the audio-cassette had been secured by the police. A bill of indictment had been filed with the Gdynia District Court against four people. At the material time the proceedings against two of the accused (the two others had died) had been pending before the first-instance court. When testifying before the authorities in those proceedings, K.G. had not revealed the background of the kidnapping and his involvement in drug trafficking. 26.     K.G. had not given evidence in the proceedings against the applicant. At the hearing held on 17 January 2008 the prosecutor had informed the trial court that it would be impossible to hear evidence from K.G. The latter and J.L. had been sought in vain for a number of years under an arrest warrant. For this reason, the prosecutor had applied to have the court read out the statements given by K.G. and J.L. in the terminated criminal proceedings in Sweden. The trial court had allowed the prosecutor’s application, having regard to the circumstances indicated above. 27.     The applicant lodged an appeal against the trial court’s judgment. He submitted, inter alia , that the trial court had breached Article   7 of the Code of Criminal Procedure (“the CCP”) in finding the evidence of L.P. and M.W. credible. He pointed out that these two witnesses had concluded an agreement with the United States authorities and that their motivation was to diminish their own responsibility at the expense of the applicant. The applicant further contested the use by the trial court of the transcript of K.G.’s “interrogation” in making its findings of fact. In his view, the admission of this evidence had violated Article 171 § 7 of the CCP. He argued that it had been unacceptable for the trial court to attempt to corroborate the evidence of L.P. and M.W. by the transcript of K.G.’s “interrogation” during which the latter had been tortured. The declarations of K.G. had been forced by torture and, as such, they had no probative value. They could not constitute evidence because they had been obtained through coercion or in conditions excluding free expression. The applicant also alleged that the trial court had erroneously established that he had acted in an organised criminal group. 28.     At the hearing before the Court of Appeal, the applicant further alleged that the trial court had violated certain provisions of the CCP by having read out the statements of K.G. and J.L. given in the criminal proceedings before a Swedish court. He submitted that K.G. and J.L. had had the right to refuse to give evidence given that they were close family of the applicant (brother-in-law and sister respectively). 29.     In its judgment of 8 October 2008, the Cracow Court of Appeal amended the contested judgment only in one aspect. It agreed with the applicant that the trial court had failed to establish that the applicant had acted as part of an organised criminal group. It therefore amended the legal qualification of the second and third count of drug trafficking and reduced the prison sentence to eleven years. 30.     The Court of Appeal rejected as unfounded the remaining arguments of the applicant. It found that the trial court had not breached Article   7 of the CCP by the allegedly erroneous assessment of evidence of the key witnesses, L.P. and M.W. The trial court, in its view, had correctly considered their evidence credible and convincingly indicated the reasons for such an assessment. 31.     The Court of Appeal noted that the transcript of K.G.’s statements confirmed the evidence of L.P. and M.W. in respect of the second count of drug trafficking. 32.     With regard to the applicant’s argument contesting the admission in evidence of K.G.’s statements, the Court of Appeal held as follows: “The appellant is not right in contesting the Regional Court’s decision to admit as procedurally valid evidence an audio-cassette including utterances of K.G. recorded while he was being tortured ... He also incorrectly qualifies this objection as a breach of Article 7 of the CCP, whereas in reality he is not concerned with the erroneous assessment of this evidence, but with generally admitting it into evidence, since it should have been excluded in accordance with Article 171 § 7 of the CCP; accordingly, a breach of that provision should have been indicated. The appellant wrongly considers that ‘this had been questioning without respect for any form prescribed by law’, and thus the utterances of K.G. being questioned could not constitute evidence since they had been made under duress. This reasoning implicitly assumes that the above-mentioned provision also applied to private persons, and not only to the authorities conducting the proceedings. The appeal did not put forward any arguments in support of this assertion, but at the appellate hearing the defence referred to the term ‘statements’, used in this provision as supporting the contention that this provision covered also the utterances of a person undergoing a kind of ‘interrogation’ in conditions of duress applied by a private person. ... This reasoning is incorrect. Firstly, the said provision applies exclusively to the authorities conducting proceedings, as is indicated by its close connection to the preceding paragraphs [of the same provision], which undoubtedly concern questioning conducted by the competent authorities. Secondly, the mere use of the term ‘statements’ [ oświadczenia ] cannot constitute a basis for such a conclusion, since despite the assertion that the CCP uses this term when referring to private declarations (outside of the proceedings), the same term is used, inter alia , in Articles 116 and 453 § 2 of the CCP with regard to declarations made by the parties to a trial. Accordingly, the term ‘statement’ belongs to procedural terminology, and it is not a term used for pronouncements made by a   person subjected to coercion by private persons. This evidence was obtained lawfully, since the police secured it on the location where K.G. had been deprived of liberty, and its content reflected an objectively occurring past event, outside of the proceedings. The recording, and the utterances of K.G., were not obtained for the purposes of the proceedings; had this been the case, they would have had to have been considered inadmissible, because such an act would be aimed at circumventing the law, that is to say Article 171 § 7 of the CCP itself. In consequence, the said evidence should be treated exactly the same as recorded utterances of a victim of assault, which point to a perpetrator. Such evidence would certainly not raise any doubts, while, in essence these two situations are not different in the examined context. Accordingly, utterances obtained as a result of coercion, recorded on an audio-cassette, [and] obtained by a private person outside of the proceedings and not for the proceedings’ purposes can constitute evidence and be subjected to assessment as other evidence obtained in a case.” 33.     The Court of Appeal held that the allegation of a breach of the CCP in relation to the reading out of the statements of K.G. and J.L. was unfounded. It noted that in the case where a witness had been hiding, as in the present case, the trial court could not have notified him of his right not to testify. 34.     The applicant lodged a cassation appeal with the Supreme Court. He argued that the Court of Appeal had breached Articles 171 §§ 5 and 7 of the CCP by restricting the scope of exclusionary rule to acts carried out by the authorities in the course of those proceedings. This approach had resulted in the acceptance of declarations made by K.G. while being tortured. The applicant argued that Article 171 §§ 5 and 7 of the CCP should have been applied to all situations in which statements under duress had been obtained, either by the authorities in the course of the proceedings or by third parties outside of the proceedings. 35.     He further argued that the aim of the exclusionary rule at issue was to discount evidence which, if admitted, carried a high risk of false factual findings being made. The risk of such evidence being false stemmed from the fact that it had been forced. The applicant noted that the reason to exclude such statements lay in the lack of a real opportunity to determine to what extent the relevant statement had been spontaneous and to what extent they had been made under coercion. He saw no reason to exclude a witness statement made under coercion emanating from the State authority, while considering admissible a   witness statement obtained by criminals as a result of torture. The applicant pointed out the paucity of K.G.’s utterances recorded on the audio-cassette that had been referred to by the trial court in making factual findings. He argued that in a situation involving lengthy exposure to considerable pain and violence, the random utterances of K.G. could not constitute evidence of what had been said by him while being tortured. 36.     In a decision of 26   November 2009, the Supreme Court dismissed the cassation appeal as manifestly ill-founded. This decision did not contain written grounds. RELEVANT LEGAL FRAMEWORK AND PRACTICE DOMESTIC LAW Constitution 37.     The relevant provisions of the Constitution read as follows: Article 30 “The inherent and inalienable dignity of the person shall constitute a source of freedoms and rights of persons and citizens. It shall be inviolable. The respect and protection thereof shall be the obligation of public authorities.” Article 40 “No one may be subjected to torture or cruel, inhuman, or degrading treatment or punishment. The application of corporal punishment shall be prohibited.” Article 45 § 1 “Everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court.” Code of Criminal Procedure 38.     Article 7 of the CCP provides as follows: “The authorities conducting the proceedings shall make their decisions on the basis of their own conviction, which shall be founded upon all evidence taken and assessed freely, with due consideration to the principles of sound reasoning, knowledge and personal experience.” 39.     The relevant part of Article 171 of the CCP provides as follows: Part V. Evidence Chapter 19. General Provisions ... Article 171 “1.     The person being questioned shall be granted the opportunity to express himself or herself freely within the framework designated for the purpose of the action at issue, and only afterwards may questions be put to him or her with a view to completing, elucidating, or verifying the statement presented. ... 5.     It shall be inadmissible: (1)     to influence the statement of the examined person through coercion or unlawful threat, (2)     to apply hypnosis or chemical or technical means affecting the psychological processes of the examined person or aimed at influencing unconscious reactions of his body in connection with the examination.” 7.     Explanations of the accused, testimony or statements given or made under conditions precluding their free expression [by the person concerned], or obtained against the prohibitions specified in § 5, cannot constitute evidence.” International LAW and Practice International Covenant on Civil and Political Rights, adopted on 16   December 1966, 999 UNTS 171 (ICCPR) 40.     The relevant provisions of the ICCPR read as follows: Article 7 “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.” Article 14 § 1 “All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. ...” United Nations Human Rights Committee (CCPR), General Comment No.   20 on Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10   March 1992 41.     In General Comment No. 20 on Article 7, the Human Rights Committee stated as follows: “2.     The aim of the provisions of Article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State Party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by Article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. ... 12.     It is important for the discouragement of violations under Article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.” Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature on 10 December 1984, came into force on 26 June 1987, 1465 UNTS 85 (UNCAT) (hereinafter “the Convention against Torture”) 42.     The relevant provisions of the Convention against Torture provide as follows: Article 1 “1.     For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2.     This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.” Article 15 “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” Article 16 “1.     Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in Articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment. 2.     The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.” THE LAW ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 43.     The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated. He submitted that the courts should not have admitted into evidence the recording of K.G.’s statements obtained from him as a result of torture inflicted by members of a criminal gang. The violation was aggravated by the trial court’s failure to summon K.G. to enable him to comment on the recording. 44.     The relevant parts of Article 6 § 1 of the Convention read as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” Admissibility 45.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The applicant’s submissions 46.     The applicant averred that K.G.’s declarations had been inadmissible as evidence under Article 171 § 7 of the CCP. In his view, the courts had incorrectly interpreted this provision by holding that it had been applicable exclusively to evidence obtained through coercion applied by a public official. The applicant submitted that it had been irrelevant whether the coercion was applied by a State agent or private individual because any statements extorted in this manner precluded free expression. A tortured person would be willing to say anything to avoid further pressure. The applicant submitted that in the present case this could be proven by the paucity of information given by K.G. under torture. 47.     Random sentences of K.G. recorded on an audio-cassette should not have constituted proof of what had been said because K.G. had been subjected to torture. There had been no possibility for the courts to carry out a proper assessment of those declarations and there had been a strong risk that they had been false. 48.     The applicant submitted that the trial court had not summoned K.G. to the trial. As a result, K.G. could not have invoked his procedural right not to testify in the case on account of his family link to the applicant (brother-in-law). In consequence, the trial court had wrongly applied Article   391 §   1 of the CCP and disclosed evidence from K.G.’s interrogation by the gang members. Under Polish law, and as supported by legal commentary, a court could refer to a previous testimony given by the person exercising the right to refuse to testify if such a person remained abroad despite the court’s having properly summoned that person to the trial. The applicant claimed that at the relevant time K.G. had resided in Sweden, but the trial court had failed to summon him to appear. In the applicant’s view, this pointed to the defective nature of the evidence collected by the trial court. 49.     With regard to the statements of L.P. and M.W., the applicant submitted that their evidence had been unreliable for several reasons. The major part of their statements had originated from hearsay. The applicant averred that L.P. had been the main source of evidence; however, the trial court had verified his testimony by referring to statements made by M.W. despite the fact that the latter had obtained his information only from L.P. In consequence, the assessment of L.P.’s evidence had been defective and should have been discounted by the Court of Appeal. 50.     The applicant further alleged that there had been no evidence confirming the statements of L.P. and M.W., which had contained inconsistencies. For this reason, their importance should have been considerably limited. He also disagreed with the domestic courts that the evidence of K.G. had been ancillary. This evidence had been cited several times in the bill of indictment and in the reasoning of the trial and appellate courts. The Government’s submissions 51.     The Government submitted that the issues of admission and assessment of evidence had been within the exclusive competence of the domestic courts. The Court, on the other hand, was competent to examine whether the applicant’s trial as a whole had been fair. The following aspects were relevant for the examination of fairness: the observance of the defence rights, the quality of evidence and its influence on the outcome of the proceedings. 52.     With regard to the defence rights, the Government maintained that they had been fully respected. The applicant had had an opportunity to challenge the admissibility of the impugned evidence and oppose its use before the Court of Appeal and the Supreme Court. The Court of Appeal had held that the admission of the recording had been lawful. It had found that K.G.’s utterances had been recorded on an audio-cassette by private individuals, outside the scope of the proceedings and not for the purpose of those proceedings and, thus, could be assessed in the same way as other items of evidence. In addition, the Government submitted that there had been a strong public interest in prosecuting large-scale drugs crimes such as those committed by the applicant. 53.     The Government pointed out that Article 171 § 7 of the CCP solely applied to the investigative and judicial authorities and was applicable to statements given in the course of proceedings and for the purposes of those proceedings. Accordingly, statements obtained indirectly – for example by the questioning of a witness by a private person outside of the proceedings – did not fall within that provision. It was not prohibited under Polish law to use in evidence statements obtained as a result of a private person’s activity. That interpretation had been confirmed in the domestic case-law and legal commentary. 54.     In so far as the quality of evidence was concerned, the Government submitted that the recording of K.G.’s utterances had been obtained by the police in the course of a search on 3 April 1998 for the purposes of the investigation into his abduction and torture. The recording had thus been made several years before the proceedings against the applicant had been initiated. Moreover, the statements had not been recorded for the purposes of the proceedings, but for the private, criminal purposes of the group of individuals. Thus, the authorities had not been in any way involved in the production of the impugned evidence. The recording had been admitted into evidence since it had been impossible to question K.G. in the proceedings as he had been in hiding for several years and the police had been unable to apprehend him. 55.     With regard to the influence of the evidence on the proceedings, the Government maintained that the utterances of K.G. had been only of a supplementary character and not decisive for the finding of the applicant’s guilt. They pointed out that the trial court’s findings in respect of the facts and of the applicant’s guilt had been mostly based on the evidence of L.P. and M.W. The recording had confirmed the already established facts and the credibility of L.P. and M.W.’s statements only. In addition, the trial court had relied on other items of evidence such as the case file of the Honduran judicial authorities. The trial court had found that the above evidence had been coherent and had formed a consequent whole. The Court of Appeal had not found any shortcomings in the trial court’s assessment of evidence. 56.     The Government further submitted that the fairness of the trial had not been undermined by the fact that K.G. could not have been examined by the court. At the hearing of 17 January 2008 the prosecutor had informed the court and the defendant that K.G. had remained in hiding despite an arrest warrant issued and thorough search activities having been carried out over a period of several years. For this reason it had not been possible to summon K.G. before the court. 57.     The Government emphasised that the present case differed significantly from that of Gäfgen v. Germany ([GC], no. 22978/05, ECHR 2010) and other similar cases where statements had been obtained as a result of treatment contrary to Article 3 of the Convention. In contrast to Gäfgen , in the present case the violence had been used by private individuals, and not towards the applicant but a third person. It was necessary to differentiate between cases where unlawful means to obtain evidence had been used by the authorities, and cases where unlawful acts had been carried out by private individuals. 58.     The Government concluded that the applicant had benefited from a fair hearing. The Court’s assessment (a)    General principles 59.     The Court notes 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. (i)   With regard to Article 3 60.     The Court reiterates that the prohibition of torture and inhuman or degrading treatment or punishment is a fundamental value in democratic societies (see, among many other authorities, Gäfgen , cited above, § 87, and El-Masri v.   the former Yugoslav Republic of Macedonia [GC], no.   39630/09, § 195, ECHR 2012). It is also a value of civilisation closely bound up with respect for human dignity, part of the very essence of the Convention (see Bouyid v. Belgium [GC], no.   23380/09, §§   81 and 89 ‑ 90, ECHR 2015). The prohibition in question is absolute, for no derogation from it is permissible even in the event of a public emergency threatening the life of the nation or in the most difficult circumstances, such as the fight against terrorism and organised crime, irrespective of the conduct of the person concerned (see Khlaifia and Others v.   Italy [GC], no. 16483/12, §   158, 15 December 2016 and the cases cited therein). 61.     In its examination of whether a person has been “subjected to ... treatment” that is “inhuman or degrading” within the meaning of Article   3, the Court’s general approach has been to emphasise that the treatment must attain a minimum level of severity if it is to fall within the scope of this provision. The assessment of that level is relative and depends on all the circumstances of the case, principally the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim (see Muršić v.   Croatia [GC], no. 7334/13, §   97, 20   October 2016; Paposhvili v.   Belgium [GC], no. 41738/10, §   174, 13   December 2016; Khlaifia and Others , cited above, §   159; and Nicolae Virgiliu Tănase v. Romania [GC], no. 41720/13, § 116, 25 June 2019). 62.     Subjecting a person to ill ‑ treatment that attains such a minimum level of severity usually involves actual bodily injury or intense physical or mental suffering. However, even in the absence of those characteristics, where treatment humiliates or debases an individual, showing a lack of respect for or diminishing his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance, it may be characterised as degrading and also fall within the prohibition set forth in Article 3. It may well suffice that the victim is humiliated in his own eyes, even if not in the eyes of others (see Bouyid , cited above, § 87, with further references). 63.     The obligation on High Contracting Parties under Article   1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken in conjunction with Article   3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including ill-treatment administered by private individuals (see, among other authorities, A. v.   the United Kingdom , 23 September 1998, §   22, Reports of Judgments and Decisions 1998 ‑ VI, and O’Keeffe v.   Ireland [GC], no.   35810/09, § 144, ECHR 2014). These measures should provide effective protection and include reasonable steps to prevent ill ‑ treatment of which the authorities had or ought to have had knowledge (see, among other authorities, Osman v.   the United Kingdom , 28   October 1998, Reports 1998 ‑ VIII, and Z and Others v. the United Kingdom [GC], no. 29392/95, §   73, ECHR 2001 ‑ V). However, the scope of the State’s positive obligations might differ between cases where treatment contrary to Article 3 of the Convention has been inflicted through the involvement of State agents and cases where violence was inflicted by private individuals (see Beganović v.   Croatia , no. 46423/06, § 69, 25   June 2009). 64.     Furthermore, Article 3 of the Convention gives rise to a positive obligation to conduct an official investigation (see Assenov and Others v.   Bulgaria , 28 October 1998, § 102, Reports 1998 ‑ VIII). Such a positive obligation cannot be considered to be limited solely to cases of ill ‑ treatment by State agents (see M.C. v. Bulgaria , no. 39272/98, § 151, ECHR 2003 ‑ XII; Šečić v. Croatia , no. 40116/02, § 53, 31 May 2007; and Beganović , cited above, §   66). 65.     The State’s positive obligation to protect people from prohibited ill-treatment administered by private individuals has been found to arise in a number of cases provided that the Court has established that a given ill-treatment attained the minimum level of severity. This obligation has been recognised, inter alia , in the following “private” contexts: a stepfather beating a child with a cane (see A. v. the United Kingdom , cited above, §§   22-24); neglect and abuse suffered by children at the hands of their parents (see Z and Others v. the United Kingdom , cited above, § 74) or their stepfather (see E. and Others v.   the United Kingdom , no. 33218/96, § 89, 26   November 2002); rape (see, among other authorities, M.C. v. Bulgaria , cited above, § 148, and S.Z. v. Bulgaria , no.   29263/12, § 41, 3 March 2015); violent assault on worshippers (see Members of the Gldani Congregation of Jehovah’s Witnesses and Others v.   Georgia , no. 71156/01, § 102, 3 May 2007); acts of domestic violence and threatening conduct (see, among other authorities, Opuz v.   Turkey , no.   334