Original scientific paper
https://doi.org/10.54070/hljk.32.2.1
EXCLUSION OF ILLEGALLY OBTAINED EVIDENCE: AUTOMATISM OR BALANCING OF INTERESTS?
Elizabeta Ivičević Karas
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
*
Zoran Burić
; Sveučilište u Zagrebu Pravni fakultet, Zagreb, Hrvatska
*
* Corresponding author.
Abstract
The paper deals with the complex issue of excluding illegally obtained evidence, which
primarily serves to protect human rights, and secondarily, other legitimate interests in criminal
proceedings. It critically examines the existing model of broad automatic exclusion of such
evidence ex lege and the very limited possibilities for the balancing of interests. The paper
first considers the theoretical foundations of the concept of interest balancing. Then, within
the existing constitutional and legislative framework and in light of the standards established
by the case law of the European Court of Human Rights, it analyses examples from domestic
jurisprudence in which the exclusion of evidence did not serve to protect a specific right, but
rather operated as a sanction for a procedural violation which, by its nature and gravity, did
not in fact infringe any particular right, or did not materially affect the effectiveness of the
defence or the fairness of the proceedings. In addition, the paper examines the rare instances
of interest balancing found in domestic case law. Particular attention is devoted to the redefined
concept of illegally obtained evidence and other concrete solutions proposed in the Draft Act
on Amendments to the Criminal Procedure Act of September 2025. The proposed redefinition
of the concept of illegally obtained evidence still provides for a predominantly automatic ex
lege exclusion of such evidence, but at the same time expands the scope for the balancing of
interests and limits the reach of the “fruits of the poisonous tree” doctrine.
Keywords
Hrčak ID:
342374
URI
Publication date:
1.12.2025.
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