The taking of evidence is a central component of criminal proceedings. The law enforcement authorities gather and examine evidence intended to prove facts beyond reasonable doubt. These facts form the basis for the decision on the defendant’s guilt and sentence. The evidential process is often highly complex, particularly in cases focusing on organised crime. Every court proceeding is subject to scrutiny, and only a ‘fair trial’ can be considered lawful. Consequently, the rights and obligations of the parties involved, as well as those of the law enforcement authorities, are subject to numerous safeguards, such as laws, constitutional norms or international treaties, designed to ensure the fairness of the proceedings. This article discusses the issue of so-called inadmissible evidence in criminal proceedings in the context of the protection of fundamental human rights and freedoms under the European Convention on Human Rights (hereinafter “ECHR” or “the Convention”) and the European Court of Human Rights (hereinafter “ECtHR” or “the Court”), and summarises the case law to date in this area.
In the context of the taking of evidence, there is always a conflict of interests – between society’s interest in the fair punishment of the offender and the individual’s right to privacy and personal integrity. Article 6 of the ECHR guarantees the right to a fair trial, which entails that every person is entitled to have their case heard by an independent tribunal in accordance with a procedure laid down by law. The ECHR does not contain an explicit provision on the so-called inadmissibility of evidence in criminal proceedings; therefore, case law derives the relevant principles. In the case of Tiemann v. France and Germany, the ECtHR held that “Article 6(1) of the Convention does not contain any rules on the admissibility or probative value of evidence or on the burden of proof, as these are, in principle, matters of domestic law”.[1] The ECtHR thus ruled out its jurisdiction to assess the inadmissibility of evidence in the context of Article 6(1) of the ECHR. However, the admissibility of evidence is examined in the context of other fundamental human rights and freedoms. This does not mean that the taking of evidence is outside constitutional control – fundamental principles of procedural fairness, such as the principle of equality of arms or the adversarial principle, also apply to the evidence-taking phase.[2]
Inadmissibility of evidence obtained through torture or other inhuman or degrading treatment
Evidence obtained through torture or other inhuman treatment (Article 3 of the ECHR) is deemed absolutely inadmissible. For evidence to be considered a violation of Article 3 of the ECHR, the inhuman or cruel treatment must reach a certain minimum level of severity.[3] A classic example of this is the violation of the prohibition against self-incrimination.
The issue of the prohibition of self-incrimination in the context of a violation of Article 3 of the ECHR was addressed by the ECtHR in the case of Jalloh v. Germany. On 29 October 1993, Mr Abu Bakah Jalloh was observed by the police taking a thin plastic bag (a so-called ‘blister) out of his mouth in their presence and handing it over to another person in exchange for money. Assuming that these bags contained drugs, Jalloh was arrested. In the process, he swallowed another “blister” that he stilll had in his mouth. No further drugs were found on him. The police took the applicant to a hospital, where the public prosecutor ordered that he be administered medication to induce vomiting. The applicant did not consent to this measure, but the medication was administered to him by force, causing him to vomit a “blister” containing 0.2182 g of cocaine. However, as a result of this procedure, the applicant suffered from health problems for several months.[4]
In its judgment, the ECtHR held that Articles 3 and 8 of the Convention do not, as a matter of principle, prohibit the use of medical interventions against a suspect’s will in order to obtain evidence of their involvement in a criminal offence. However, any compulsory medical intervention for the purpose of obtaining evidence must be convincingly justified by the circumstances of the specific individual case. This applies in particular to cases where the purpose is to obtain from a person’s body actual evidence of the offence with which they are charged. The particularly intrusive nature of such an intervention requires a careful and rigorous examination of the circumstances of the individual case. In this context, due account must also be taken of the seriousness of the offence in question. The state authorities must demonstrate that they have considered alternative methods of obtaining evidence. Furthermore, the chosen approach must not entail any risk of permanent damage to the suspect’s health.
As with interventions carried out for therapeutic reasons, the manner in which a person is subjected to a compulsory medical procedure for the purpose of obtaining evidence from their body must not exceed the minimum level of severity established in the Court’s case-law on Article 3 of the Convention. In this regard, particular consideration must be given to whether the person concerned suffered significant physical pain or suffering as a result of the compulsory medical intervention. A further aspect to be considered in cases of compulsory medical intervention concerns the question of whether the intervention was ordered by a doctor and whether the person concerned was under constant medical supervision during the procedure.[5] Furthermore, it must be examined whether the compulsory medical intervention led to a deterioration in the person’s state of health and whether it resulted in lasting health consequences. Every law enforcement authority should observe these principles – if they are breached, the evidence in question constitutes so-called inadmissible evidence in criminal proceedings. In the case of Jalloh v. Germany, the Court found that the evidence obtained formed the sole basis for the applicant’s conviction. The criminal proceedings against him were therefore unfair.
Another situation in which evidence may be deemed inadmissible as a result of a breach of Article 3 of the Convention arises where so-called ‘fruit of the poisonous tree’ evidence is obtained on the basis of cruel or inhuman treatment (the so-called ‘fruit of the poisonous tree’ doctrine). According to the case law of the Court, such a situation initially gives rise merely to a presumption that the right to a fair trial was violated in the criminal proceedings in question. This presumption is only confirmed or refuted in the course of judicial review, and, where appropriate, a violation of the right to a fair trial is thereby established. The national courts must then address the actual question of the admissibility of the evidence.
Inadmissibility of evidence due to a violation of the right to respect for private life
Article 8 of the ECHR guarantees the right of every individual to respect for their private life. According to the established case law of the ECtHR, the concept of private life encompasses both the protection of a person’s physical[6] and psychological integrity.[7]
In the aforementioned cases, as well as in other cases where a possible violation of the right to private life is examined, a balance must always be struck between the right to privacy and the legitimate aim provided for in Article 8(2) of the Convention. One of the best-known cases is Schmidt v. Germany, in which the applicant was compelled by the German police to provide blood and saliva samples. Taking all the circumstances into account, the ECtHR found no violation of the legitimate aim, as the investigation concerned a criminal offence of considerable gravity and the interference was based on a statutory provision. There was therefore no violation of the right to a fair trial.
Conclusion:
The use of evidence obtained as a result of a breach of other rights guaranteed by the Convention (in addition to Article 3) does not automatically lead to a violation of the right to a fair trial, as guaranteed by Article 6 of the Convention. No single article of the European Convention on Human Rights expressly regulates the admissibility or methodology of the assessment of evidence in criminal proceedings. The sole relevant provision therefore remains Article 6, which guarantees the right to a fair trial and provides specific safeguards for a fair trial. It can thus be concluded that the use of evidence is consistent with the Convention provided that it does not violate these guarantees. The admissibility of evidence therefore remains, in principle, within the exclusive jurisdiction of domestic law and the national courts.
Nevertheless, the European Court of Human Rights has, in its case law, addressed the admissibility of evidence in criminal proceedings in connection with violations of other fundamental rights and freedoms, in particular the prohibition of torture and other inhuman treatment (Article 3 of the ECHR) and the right to respect for private life (Article 8 of the ECHR).
The ECtHR held that the Convention does not, in principle, prohibit the use of compulsory medical interventions for the purpose of investigating criminal offences. However, any interference with a person’s physical integrity for the purpose of obtaining evidence must be subject to strict scrutiny. In particular, the following factors must be taken into account: the extent to which the compulsory medical intervention is necessary for the purpose of obtaining evidence; the risk to the suspect’s health; the manner in which the intervention is carried out; the physical pain and mental suffering caused; the extent of medical supervision; and the impact on the suspect’s health. Taking into account all the circumstances of the specific case, the intervention must not reach the minimum level of severity that would bring it within the scope of Article 3 of the ECHR.
It is clear from this that, according to the case law of the European Court of Human Rights, not every violation of a right guaranteed by the Convention automatically results in a violation of the right to a fair trial as a whole or in the subsequent inadmissibility of evidence. It therefore remains a matter of debate whether proceedings in which unlawfully obtained evidence is used can be regarded as fair, and whether it is correct that the ECtHR, in its established case law, generally permits such a course of action. This issue is the subject of intense debate among legal experts, and legal opinion is currently divided despite the ECtHR’s clear line.
[1] Judgment of the ECtHR in Tiemann v. France and Germany of 27 April 2000, Nos. 47457/99 and 47458/99.
[2] Decision of the Constitutional Court II. ÚS 3312/16 of 8 December 2016, paragraph 13.
[3] Judgment of the ECtHR in Jalloh v. Germany of 11 May 2006, No. 54810/00, paragraph 67.
[4] Further information can be found in the judgment in Jalloh v. Germany, which is available here: https://sbirka.nsoud.cz/vyber/jalloh-proti-nemecku-rozsudek-velkeho-senatu-ze-dne-11-7-2006/.
[5] Judgment of the ECtHR in the case of Ilijkov v. Bulgaria, Application No. 33977/96.
[6] Judgment of the ECtHR in the case of Schmidt v. Germany of 18 June 1994, No. 135/80/88.
[7] Judgment of the ECtHR in the case of Wainwright v. the United Kingdom, 26 September 2006, No. 12350/04, paragraph 43.