ODIHR Opinion on Definition of Torture and its Absolute Prohibition in Polish Legislation 44. Recalling the CAT recommendation (2013) “to take immediate legal and other measures to ensure that victims of torture and ill-treatment obtain redress and have an enforceable right to fair and adequate compensation,” it is recommended that relevant legislation explicitly provides for effective legal redress for victims of torture and other ill-treatment. 4.3 Non-refoulement Principle 45. Various international instruments oblige the States to apply the principle of nonrefoulement in relation to possible risks of torture and other ill-treatment.30 Paragraph 28 of General Comment No. 4 provides “that the infliction of cruel, inhuman or degrading treatments or punishments, whether or not amounting to torture, to which an individual or his/her family were exposed in their State of origin or would be exposed in the State to which he/she is being deported, constitutes an indication that the person is in danger of being subjected to torture if he/she is deported to one of those States.” Moreover, in a number of cases the ECtHR has held that Article 3 of the ECHR would be violated if the applicant were to be extradited, because s/he would be exposed to a “real risk” of inhuman or degrading treatment or punishment. 31 In addition, non-refoulement under ECHR equally applies to inhuman and degrading treatment, and acts committed by nonstate actors such as domestic violence, homophobic violence, while under CAT it only applies to torture. 46. Article 55 of the Constitution prohibits the extradition of Polish citizens (with exceptional cases) and Article 56 provides a right for foreigners to seek asylum. It is also welcomed that the Polish Act on Foreigners and Act on Granting Protection to Aliens on the Territory of Poland legally protects persons against extradition in cases when their life, freedom and personal security might be threatened, or could be subject to torture or other ill-treatment.32 However, by absence of the definition of torture in the legislation, additional safeguards are needed to ensure the full application of this principle on all acts of torture and other ill-treatment. 4.4 The Exclusionary Rule 47. The exclusionary rule must be considered under the absolute prohibition against acts of torture and other ill-treatment. Article 15 of the UNCAT commits states to “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.”33 In addition, Article 12 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman 30 31 32 33 See paragraph 45 of the General Comment No. 4 on the implementation of article 3 of the Convention in the context of Article 22, 9 February 2018. Please see also Article 33 of the 1951 Refugee Convention. See Soering v. United Kingdom, (No 14038/88, 7 July 1989), Chahal v. United Kingdom, (No22414/93, 15 November 1996), Saadi v. Italy (No 37201/06, 28 February 2008) and M.S.S. v. Belgium and Greece (No 30696/09, 21 January 2011). See Articles 348 and 351 of the Act of Poland on Foreigners (Dz.U.z 2013 r. poz.1650) and Article 15 of the Act on Granting Protection to Aliens on the Territory of Poland (Dz.U.z 2003 r, poz 1176). For example, the Criminal Procedure Code of Germany provides that “Statements which were obtained in breach of [among others ill-treatment, physical interference]… shall not be used, even if the accused consents to their use.” The Criminal Procedure Code of Georgia provides that when “a plea bargain has been entered into as a result of torture, inhuman or degrading treatment or other violence, threats, deception…, it shall transfer the case to a superior prosecutor.” 13