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ECtHR: ‘informal’ police questioning violates the right to a fair trial
On 11 May 2023 the European Court of Human Rights issued a unanimous judgment in the case of Lalik v. Poland finding a violation of the right to a fair trial and declaring the applicant’s trial unfair. Fair Trials had submitted a third-party intervention in this case highlighting the illegal practice of so-called ‘informal questioning’ in Poland and its detrimental effect on the fairness of criminal proceedings in its later stages. In its ruling the Court affirmed the illegality of the practice informal questioning and ruled the trial based on evidence obtained from such practice unfair as a whole.
Background of the case
In January 2016 the applicant, while severely intoxicated, set fire to his drinking partner’s jacket, causing the latter to sustain severe burns that lead to his death. Within a couple of hours, Mr. Lalik was arrested and taken to the police station where a breathalyser test showed approximately 1.3 per mille of alcohol in his system. According to the Government, he was informed of his rights shortly after his arrival at the police station, although no proof of that was submitted to the Court. The following morning he was informally questioned by three police officers for almost three hours, without having seen a lawyer or having one present, and without being breathalysed again. No formal record of the questioning was drawn up, but one of the officers made an official note of what was said and signed it.
The next day Mr. Lalik was charged with murder with particular cruelty. His defence lawyer was not present at the very start of his questioning by the prosecutor, and Mr. Lalik began by pleading guilty to the charge. Once he had spoken to his lawyer a few minutes later, he retracted what he had said, and stated that he had not intended to kill his friend but only to play a prank on him.
The applicant was subsequently convicted of aggravated murder and sentenced to 25 years’ imprisonment. The judgments of the national courts referred explicitly to statements he had made during the informal questioning that had taken place before he had seen a lawyer, and allegedly while still under the effect of alcohol. The notes drawn up by the police officer were added to the case file and used by national courts as key evidence in establishing Mr. Lalik’s intent to kill his friend, which in turn led to his conviction for murder. The courts considered what he had said to be particularly credible, because he had spoken spontaneously and had not had a chance to think about his line of defence. Mr Lalik’s lawyer consistently argued that had those statements been excluded, Mr Lalik would have faced a maximum penalty of 12 years’ imprisonment for causing grievous bodily harm leading to death.
Fair Trials’ third-party intervention
In its third-party intervention Fair Trials drew attention to the widespread practice of so-called ‘informal police questioning’, that seeks to bypass the protections guaranteed by Article 6(3)(c) ECHR by creating another category of questioning, not subject to fair trial rights. We noted the court’s earlier ruling in Ayetullah Ay v. Turkey which recognised that “any conversation between a detained criminal suspect and the police must be treated as formal contact and cannot be characterised as informal questioning or interview”. Therefore any information obtained from such informal conversations should be treated as illegal.
Fair Trials draw attention to its recent findings from two-year long research into use of unlawful evidence in Europe’s courts. Questioning of suspects without the presence of a lawyer can offer multiple direct and indirect advantages for the prosecution’s case, even where the statements made by the suspect are not recorded or are formally excluded from the criminal case file. These can be very difficult or almost impossible to challenge and remedy effectively before or at trial. Even where the possibility to challenge the use of such statements and to exclude them exists under national law, such challenges may not be effective in practice. In many civil law systems, the assessment on admissibility of evidence is done during the trial on the merits and is carried out by the same judge(s) who will also make the final ruling on the guilt or innocence. Therefore the content of statements obtained unlawfully, even where they are formally challenged and excluded from the evidence, are well known to the trial judges and will likely influence their decision making.
In its judgment finding a violation of the right to a fair trial, the Court emphasized the importance of the investigation stage for the preparation of criminal proceedings, as the evidence obtained during this stage determines the framework within which the offence as charged will be considered at trial. The Court reiterated that any conversation between a detained criminal suspect and the police must be treated as formal contact, and cannot be characterised as informal questioning or as an informal interview as this would allow for a circumvention of basic procedural rights enshrined in Article 6(3) of the ECHR.
At the outset, the Court noted that the Government submitted that the applicant had received that information just after his arrest, however it failed to provide a copy of the relevant document. It also found that the applicant did not receive similar information about his rights prior to being informally questioned in the late morning after his arrest. His sobriety was also not tested prior to the commencement of this informal questioning. The applicant also did not communicate with his lawyer until the formal questioning by the prosecutor was already underway. Therefore, the court found that the applicant – who was entitled to the protection of Article 6 of the ECHR from the time of his arrest – was not sufficiently apprised of his rights.
The Court analysed various aspects under the overall fairness test, including whether the applicant was in a vulnerable position, the circumstances in which the evidence was obtained, the nature of statements, its appraisal and use by national authorities and whether other procedural safeguards were applied in criminal proceedings. The Court found in particular that the exclusionary rule set out in Article 174 of the Polish Code of Criminal Procedure was ineffective in practice. Even though an official note should not have been used to replace the accused’s explanations, that prohibition was essentially circumvented when the note was included in the case file, and the officer who drafted it questioned as a witness with the content of that note shown to him by way of an aide-mémoire.
The Court also noted that, despite the fact that the applicant challenged the use of explanations that he had given to the police, his arguments were dismissed by the domestic courts. In particular, the Court of Appeal referred to the relevant jurisprudence of the Supreme Court, which held that the national law did not prohibit the reproduction of statements made by a person entitled to refuse to testify – for example, during his or her arrest by a police officer in the form of a spontaneous statement. The Court did not consider the explanations given by the applicant inside the police station spontaneous, given that they were made in the presence of three police officers, who themselves described the activity – which lasted for almost three hours – as “questioning” (albeit informal).
Thus the Court found that the practice of conducting a session of informal questioning after arrest, in breach of the guarantees enshrined in Article 6(3) of the ECHR, and in particular in the absence of any information to the arrestee about their rights, combined with questioning during the trial of an officer who prepared an official note, puts the arrestee at a disadvantageous position from the very start of the investigation in question. The domestic courts not only endorsed such an approach, but also made direct references to the applicant’s initial explanations and considered them particularly. Thus, the Court found that the criminal proceedings brought against the applicant, when considered as a whole cannot be considered as fair.
The Court’s judgment in Lalik v Poland represents a positive development in the assessment of the use of unlawfully used evidence and analysis of exclusionary rule in practice. The Court rightly emphasized the crucial importance early stages of criminal proceedings play in formation of the entire case against a suspect or accused person. As we noted in our third-party intervention, evidence and even mere information gathered in early stages of criminal proceedings can be used in various ways to form the basis of the case against the suspect.
Often where national law formally recognizes and even applies the exclusionary rule to evidence obtained in violation to suspect’s defence rights (e.g. right to a lawyer and privilege against self-incrimination) such evidence is still included in the case file and is used by national courts in support of a conviction. As this case clearly shows, in practice there are various forms of including unlawful evidence in criminal case files either in the form of notes drawn up by police officers or through police testimony, which often is given a higher degree of credibility. Therefore the Court’s analysis represents a welcome development in recognizing the reality of the circumstances in which criminal proceedings take pace, in particular, that early statements given by the applicant in a situation where he had not been apprised of his rights, nor had access to a lawyer “had already influenced the course of the investigation” undermining the fairness of the proceedings as a whole.