Izvorni znanstveni članak
Unlawful evidence in criminal procedure according to the case law of the European court of human rights
Davor Krapac
; Ustavni sud Republike Hrvatske, Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
Although, traditionally speaking, it is not within the jurisdiction of the European Court of Human Rights (ECHR) to assess the legality and usability of evidence before criminal courts, nevertheless by applying flexible «fair trial» criteria in accordance with article 6 paragraph 1 of the Convention on the Protection of Human Rights, the Court assesses whether the way evidence is acquired or presented in specific cases of national legal procedure has affected the justice of the procedure as a whole or whether, on the occasion, some other Convention right has been violated.The paper initially covers several rulings of the European Court of Human Rights passed on the occasion of the violations of article 3 and article 8 of the Convention committed during different investigative actions, interrogating persons and carrying out searches of persons, of premises or objects (including the latest ruling in the case Lisica vs Croatia of 04/11/2010). The paper further discusses the decisions in which, owing to defective behaviour of the national authorities, the ECHR ruled that there had been a breach of fair trial either generally, as regards the findings of the factual nature detrimental to the defendant (i.e. the important ruling for the Republic of Croatia in the case Peša vs Croatia of 08/04/2010), or as regards the way in which the defendant's deposition statement was obtained or the witness's testimony (i.e. the ruling in the case Kovač vs Croatia of 12/08/2007 and Vanjak vs Croatia of 14/01/2010). The main characteristic of all these rulings is that neither the protection of fundamental rights nor that of absolute rights according to the Convention include the obligation to exclude unlawful evidence. Although the flexible fairness criterion for assessing the national criminal procedure in which unlawful evidence was used derives from the fact that for various reasons the ECHR was unable to recognize the right to trial on the basis of lawful evidence or the right to trial on the basis of evidence not obtained by violating human rights as specific Convention rights, the author considers that this does not free us of the obligation to study the Court's relevant case law and its transposition to national law.
Ključne riječi
criminal procedure; European Court of Human Rights; unlawful evidence
Hrčak ID:
62989
URI
Datum izdavanja:
21.12.2010.
Posjeta: 9.073 *