Week 7 Flashcards
2 types of evidence
- tangible = can be tested
- other = e.g. testimonies
Dual use of rules of evidence
- safeguard for evidentiary value of collected evidence
- guarantee fairness
Judge Germany: task
- admission of evidence
- evaluation of evidence
Violation of rules regarding evidence-taking NL: rule
Art. 359a DCCP
appearance of accused in trial NL
not required, criminal procedure more efficient
appearance of accused in trial UK + Germany
required, regarding the fairness of collection of evidence
Collecting evidence NL
from start of commission of crime up to appeal proceedings, by all state authorities participating in procedure
collecting evidence UK
not before hearing in court = orality principle
Hearsay UK
not allowed
collecting evidence Germany
has to be presented at trial, cannot be collected earlier = orality principle
safeguards rules UK
strict + precise, cross-examination, disclosing information on obtaining evidence, party may object to evidence introduced by other party
Burden of proof UK
more on prosecution
burden of proof NL + Germany
more on judge
providing reasons for judgement UK
not necessary
providing reasons for judgement NL + Germany
courts obliged to give reasons
ECtHR Nitulescu v. Romania
use of illegally obtained evidence in a court trial; breach of Art. 8
ECtHR Prade. v Germany
use of illegally obtained evidence in a court trial; breach of Art. 8
ECtHR Jalloh v. Germany
use of illegally obtained evidence in court trial; breach of Art. 3
Admissibility of unlawful evidence - ECHR
- 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 - admission of unlawful evidence in violation of right to fair trial?
- Art. 6(1) = right to fair trial
Violation of art. 3 ECHR - torture
- 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
violation of art. 3 ECHR - inhuman & degrading treatment
- 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?
Violation of Art. 6(1) ECHR
- 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)
Violation of Art. 6(1) ECHR - always improper compulsion
- violation of art. 3
- bullying (Miller)/ emotional manipulation (Zaandam-style)
- Deceit/threat/illegal benefits or promises
Violation Art. 6(3)(c) ECHR
- 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)?
