International Review of Law (Apr 2021)
The Exclusionary Rule in Criminal Procedures: An Analytical Study in the European Court of Human Rights Jurisprudence
Abstract
This research deciphers the European Court’s standing on the dictum of excluding illegally obtained evidence in criminal procedures. It seeks to look into judicial precedents that reveal the methodology followed by the European Court in this regard to see whether the Court has inclined to actually assess the obtained illegal evidence, or even draws any attention to it. If it is proven that the Court actually evaluates the legitimacy of this evidence and assesses its acceptance, the next question would be to assess the extent to which it does so, and whether the Court has the authority to exclude the evidence all together. The research seeks to clarify the legal controls adopted by the Court to determine the scope of its powers in this matter, whether in terms of evaluating the evidence and estimating its acceptance, or in terms of the powers to rule on the illegality of the evidence in the event of a violation of one of the rights stipulated in the European Convention on Human Rights, especially the right to a fair trial and the right to respect private life. This study answers the problem from the theoretical level to the practical one. Although the Court monitored the legitimacy of evidence and its acceptance in many cases, it did not establish a clear methodology for dealing with legitimate evidence. Despite the fact that that Court has adopted a number of criteria, the Court did not go as far as to suggest any as the dominant one, and it did not go further to suggest one of them and formulate it as a real approach to dealing with evidence. However, the jurisprudence of the European Court is replete with judicial precedents that are based on criteria and foundations that are suitable to serve as the base for the establishment of clear detailed regulations regarding the exclusion rule, but that needs a serious pause from the Court and a bold step by which the Court proceeds to take an explicit position in this regard.
