Week 7

Question 1

2 types of evidence

Answer 1

• tangible = can be tested

- other = e.g. testimonies

Question 2

Dual use of rules of evidence

Answer 2

• safeguard for evidentiary value of collected evidence

- guarantee fairness

Question 3

Judge Germany: task

Answer 3

• admission of evidence

- evaluation of evidence

Question 4

Violation of rules regarding evidence-taking NL: rule

Answer 4

Art. 359a DCCP

Question 5

appearance of accused in trial NL

Answer 5

not required, criminal procedure more efficient

Question 6

appearance of accused in trial UK + Germany

Answer 6

required, regarding the fairness of collection of evidence

Question 7

Collecting evidence NL

Answer 7

from start of commission of crime up to appeal proceedings, by all state authorities participating in procedure

Question 8

collecting evidence UK

Answer 8

not before hearing in court = orality principle

Question 9

Hearsay UK

Answer 9

not allowed

Question 10

collecting evidence Germany

Answer 10

has to be presented at trial, cannot be collected earlier = orality principle

Question 11

safeguards rules UK

Answer 11

strict + precise, cross-examination, disclosing information on obtaining evidence, party may object to evidence introduced by other party

Question 12

Burden of proof UK

Answer 12

more on prosecution

Question 13

burden of proof NL + Germany

Answer 13

more on judge

Question 14

providing reasons for judgement UK

Answer 14

not necessary

Question 15

providing reasons for judgement NL + Germany

Answer 15

courts obliged to give reasons

Question 16

ECtHR Nitulescu v. Romania

Answer 16

use of illegally obtained evidence in a court trial; breach of Art. 8

Question 17

ECtHR Prade. v Germany

Answer 17

use of illegally obtained evidence in a court trial; breach of Art. 8

Question 18

ECtHR Jalloh v. Germany

Answer 18

use of illegally obtained evidence in court trial; breach of Art. 3

Question 19

Admissibility of unlawful evidence - ECHR

Answer 19

1. Violation of ECHR?
   - art. 3 = right to be free from torture
   - art 6(1) = right to silence
   - art. 6(3)(c) = right to counsel
   - art. 8 = right to respect for private life
2. admission of unlawful evidence in violation of right to fair trial?
   - Art. 6(1) = right to fair trial

Question 20

Violation of art. 3 ECHR - torture

Answer 20

• automatic exclusion
• Gafgen test: par. 90 considered torture when:
  1. circumstances (duration + physical/ mental effects + sex/age/mental health)
  2. intentional infliction of severe pain?
  3. aim of obtaining information/punishment/intimidation (par 108 threat also amounts tot torture)?
• Yes (par. 105 Prade)? violation of right to fair trial art. 6(1) ECHR

Question 21

violation of art. 3 ECHR - inhuman & degrading treatment

Answer 21

• not automatic exclusion
• definition: par. 68 Jalloh, criteria par. 107:
  1. evidence decisive?
  2. public interest served?
  3. suspect suffered unintentional pain/suffering?
  4. defense had ability to challenge admissibility of evidence?

Question 22

Violation of Art. 6(1) ECHR

Answer 22

• establishing whether it was improper compulsion - Allan criteria:
  1. examine nature and degree of compulsion (character suspect + type + length + climate of questioning + breaks + facilities)
  2. existence of relevant procedural safeguards (lawyer present, right to silence)
  3. how obtained material is put to use later (gravity in trial)
• if right to silence violated = exclusion evidence because violation art. 6(1)

Question 23

Violation of Art. 6(1) ECHR - always improper compulsion

Answer 23

• violation of art. 3
• bullying (Miller)/ emotional manipulation (Zaandam-style)
• Deceit/threat/illegal benefits or promises

Question 24

Violation Art. 6(3)(c) ECHR

Answer 24

• 2 step test Salduz:
  0: right to lawyer violated + confession/incriminating statement
  1: par 258 Ibrahim, compelling reasons (temporary, par. 259 Ibrahim + individual assessment + restrictions domestic law + enough safeguards)?
  2: how much did violation of right to counsel prejudice fair trial (par. 274 Ibrahim) (Beuze) (vulnerability applicant + legal framework + opportunity to challenge evidence + quality/reliability/accuracy evidence + nature of statement + gravity evidence + assessment by judge + public interest + safeguards)?

Question 25

no violation art. 8 ECHR

Answer 25

1. defense’s right has been respected, par. 45 Nitulescu
2. evidence reliable and strong
3. public interest in favour of prosecuting case, par 35 Prade

Question 26

Exclusion of evidence UK

Answer 26

automatic:

• torture
• interceptions of telecommunication
• oppression (Emmerson/Miller/Goldenberg)

other:
- if no fair trial s. 78(1) PACE

Question 27

exclusion evidence NL: rules

Answer 27

Art. 359a (1) + (2) DCCP