Illegally obtained evidence

Question 1

Why? Why not?

Answer 1

1. Pros:
   - Substance is still valid
   - Denies justice if strong evidence
2. Against:
   - Remedy
   - Deterring the police
   - Moral integrity of the trial  Condoning the wrongdoing of State authorities

Question 2

Exclusion of evidence - ECHR - Art. 8

Answer 2

1. Were the defence rights protected? (Opportunity to challenge for both the evidence and its use)
2. Is the evidence reliable and strong? Check credibility
3. Public interest  Not a ground if blatant prejudice to fair trial

Question 3

Exclusion of evidence - ECHR - Art. 3

Answer 3

1. Torture  Automatic exclusion
2. Inhuman and degrading treatment  Check if evidence is decisive, public interest, ability to challenge, degree/nature, intention of police officers…  Not super clear but rather strict interpretation

Question 4

Exclusion of evidence - ECHR - Art. 6

Answer 4

1. Right to silence  Usually excluded if blatant - Check Allan
2. Right to lawyer  Salduz said automatic exclusion  Changed by Ibrahim
   - Step 1. Were there compelling reasons (circumstances, duration, individual assessment, safeguards, domestic law provision…)
   - Step 2. Check if prejudice to fair trial (failure to notify, improper compulsion, vulnerable suspect, legal framework, opportunity to challenge, quality and reliability of evidence, nature of violation, use of evidence, nature of evidence, judge and jury instructions, public interest…)

Question 5

Exclusion of evidence - EN

Answer 5

1. Automatic exclusions:
   - Torture
   - Interceptions of telecommunications  Never admitted in court because hearsay
   - Confession by oppression or under circumstances pointing at unreliability (Goldenberg)
2. Not automatic:
   - For everything else
   - Check prejudice to fair trial
   - Look at magnitude of breach  Was the individual actually affected, was there bad faith from police?
3. Fruits of the poisonous tree:
   - Depends on nature of breach
   - Evidence obtained as the result of illegal confession is still admissible

Question 6

Exclusion of evidence - NL

Answer 6

1. Only if irremediable breach
2. If there are no other specific provisions on the matter
3. Check:
   - Interests protected
   - Gravity of breach
   - Harmed caused to the defence
4. There can also be other consequences:
   - Reducing sentence
   - Barring prosecution  In case of bad faith from state authorities
5. Automatic exclusion if torture, breach of privacy

Question 7

NL - Exclusion of evidence - Reducing sentence

Answer 7

1. Was there harm to the defence? 2. Resulting from the breach, 3. Harm is suitable for compensation and 4. Reduction of sentence is suitable due to the gravity of the breach