statusofillegallyobtainedevidence2

Opinion on the status of illegally obtained evidence in criminal procedures in the Member States of the European Union

Google-(machine) translation of the french text from the original document, published for educational puposes only.

French text available here.

E.U. NETWORK OF INDEPENDENT EXPERTS ON BASIC RIGHTS

November 30, 2003

Reference: CFR-CDF.opinion3-2003

Network U.E of independent experts as regards basic rights was created by the European Commission at the request of the European Parliament. It ensures the follow-up of the situation of the basic rights in the States members and in the Union, on the basis of Charter of the basic rights. The Network presents reports/ratios on situation of the basic rights in the Member States and the Union, as well as opinions on questions specific related to the protection of the basic rights in the Union. The contents of the opinion do not engage in any manner European Commission. The Commission does not assume any responsibility as for information but this document contains.

The Network EU of independent Experts as regards basic rights was put on foot by the European Commission (DG Justice and interior businesses), at the request of The European Parliament. Since 2002, it ensures the follow-up of the situation of the basic rights in the Member States and the Union, on the basis of Charter of the basic rights of European Union.

The Network EU of independent Experts as regards basic rights is composed of Elvira Baltutyte (Lithuania), Florence Benoit-Rohmer (France), Martin Buzinger (Rép. Slovak), Achilleas Demetriades (Cyprus), Olivier De Schutter (Belgium), Eriksson Maja (Sweden), Teresa Freixes (Spain), Gabor Halmai (Hungary), Wolfgang Heyde (Germany), Morten Kjaerum (Denmark), Henri Labayle (France), Mr. Rick Lawson (Netherlands), Lauri Malksoo (Estonia), Arne Mavcic (Slovenia), Vital Moreira (Portugal), Jeremy McBride (the United Kingdom), Bruno Nascimbene (Italy), Manfred Nowak (Austria), Marek Antoni Nowicki (Poland), Donncha O' Connell (Ireland), Ian Refalo (Malta), Martin Scheinin (substitute Tuomas Ojanen) (Finland), Linos Alexandre Sicilianos (Greece), Dean Spielmann (Luxembourg), Pavel Sturma (Rép. Czech), Ineta Ziemele (Latvia). The Network is coordinated by O. De Schutter.

The documents of the Network can be consulted via:

http://www.europa.eu.int/comm/justice_home/cfr_cdf/index_fr.htm

Belgium ....................................10

The use within the framework of penal continuations of the proof illegally collected ................... 10

The proof illegally collected by a private person ............................................................................ 11

France ............................................................................................................... 15

Greece ............................................................................................................... 16

Legal status of the evidence collected in violation of the rules relating to the protection of the life privée...............................16

Catch counts evidence collected by the means of punishable acts by the law for the declaration of culpability ...................... 17

Attacks with the private life made by the private people ................................................................. 17

Inadmissibility of the evidence illegally obtained and its exception ................................................ 18

Italy .................................................................................................................... 19

Luxembourg ......................................................................................................... 20

The use within the framework of penal continuations of the proof illegally collected .................................. 20

Spain ................................................................................................................... 24

The use within the framework of penal continuations of the proof illegally collected .................................. 24

Belgium

The use within the framework of penal continuations of the proof illegally collected

In Belgian right, the principle is that of the freedom of the penal proof 19: explicitly formulated with article 342 of the criminal Instruction code which governs the procedure carried before the court of bases, regulate applies in front of all the penal jurisdictions; it implies that the penal judge will have to appreciate the value of any proof carried in front of him, without limitation as for the type of proof in question 20.

The rule known as of the exclusion of the evidence irregularly obtained constitutes an exception to this principle of freedom 21. According to a stop of the Supreme court of appeal of January 4, 1994 - but this stop only makes to confirm a rule laid down well since 1923 -: “The judge cannot declare established an infringement, if proof in was obtained following a punishable fact or in a another irregular way, that is to say share authority in charge of research, observation or continuations as regards infringement, are on behalf of the denouncer of the infringement; in this case, the penal judge cannot declare established the fact put at charge of prevented, except if the proof of the infringement is brought by other elements of proof which result neither directly nor indirectly from the proof obtained irregularly” 22. It belongs thus with the judge to check that the proof of the infringement was regularly established, which supposes that the authorities in charge of the investigation do not dissimulate with the magistrate the circumstances in which such index was collected, thus preventing the magistrate from exerting his control 23.

The proof collected in violation will have to be excluded in particular of the right to the respect of the private life or right of each one not to contribute to its own incrimination, i.e. “right to silence” recognized with shown out of penal matter. It will be noted that the right to silence excludes not only the consent given under the threat of penal sanctions, but also the recourse to techniques which, such narcolysis or hypnosis, deprives the defendant of the control of information which it can deliver to outside.

The proof illegally collected must be isolated debates. It cannot be used to found one penal judgment. However, that does not exclude that the penal judge pronounces such judgment, after having noted that the components of the infringement are joined together, on the basis other elements of proof, not vitiated by the irregularity which was noted, and in so far as these elements indeed were subjected to the free discussion parts, as the principle requires it of contradictory. According to the Supreme court of appeal of Belgium, the illegality which vitiates an element of proof conflict irrevocable of manner with the right of defense and the right to an equitable lawsuit that “when confusion between the acts of instruction and the illegal proof is such as the acts

19 Voy. e.g. Cass., May 6, 1946, Not., I, p. 171; Cass., September 13, 1965, Not., 1966, I, p. 59; Cass., November 27, 1979, Not., 1980, I, p. 388.

20 article 154 of the criminal Instruction code proposes only one enumeration, nonrestrictive, of the methods of proof of the penal infringement.

21 For general presentations, voy. H. - D. Bosly and D. Vandermeersch, Right of the penal procedure, 2nd éd., the Charter, 2001, pp. 919-926; A. De Nauw, “rules of exclusion relating to the proof in Belgian penal procedure”, rev. Dr. pén. crim., 1990, p. 714; PH. Traest, “Of rol van of private individual in het bewijsrecht in strafzaken: naar een relativering van of uitsluiting van onrechtmatig verkregen bewijs? ”, Liber amicorum Jean of the Garden, Antwerpen, Kluwer, 2001, p. 61.

22 Cass., January 4, 1994, rev. Dr. pén. crim., 1994, p. 80, concl. of the Lawyer general J. Garden. Many of other stops go in the same direction, e.g. Cass., May 13, 1986, rev. Dr. pén. crim., 1986, p. 905, concl. AV gén. J. Garden; Cass., January 17, 1990, Not., 1990, I, n° 311 and April 17, 1991, rev. Dr. pén. crim. , 1992, 94, CH note. De Valkeneer, “Of illegality made by a third in the administration of the proof”, p. 104.

23 Mons (CH. settings in acc.), November 19, 1998, rev. Dr. pén. crim., 1999, p. 239, note J. Sace, J.T., 1999, p. 66, note O. Klees and D. Vandermeersch.

of instruction are sullied with the same illegality and as as well the instruction as the public action on this one” 24 are founded.

Until the adoption of a law of July 4, 2001 supplementing the criminal Instruction code, jurisprudence admitted that, in spite of the principle of the exclusion of the evidence illegally collected, it prevented could nevertheless use for its defense the isolated parts of the debates, which continued to appear materially in file 25. The law of July 4, 2001 supplemented articles 131 § 2 and 235bis § 6 of the criminal Instruction code by specifying, against this jurisprudence, that “Them parts deposited at the clerk's office cannot be consulted, and cannot be used in penal procedure”. In a stop n°86/2002 of May 8, 2002, the Court of arbitration considered that absolute and general prohibition for prevented to use parts cancelled by a jurisdiction of instruction, “even when they contain elements which can be essential to defense of a part”, leads to a violation of the constitutional principles of equality and nondiscrimination, “read in the light of the principle general of the right relating to the respect of the rights of defense”. Above mentioned additions made by the law of July 4, 2001 to the criminal Instruction code were thus cancelled. According to the posterior jurisprudence of the Supreme court of appeal, it is essential nevertheless with the judge to determine the extent to which the respect due to the rights of defense the possibility for part requires of of using isolated parts of the debates, while taking care of the rights other parts: if the right of defense could not be denied, as it could be it if exclusion parts was complete even when they can serve defense of the defendant, this right is not either absolute, but must be put out of balance with the rights of the other parts to the penal procedure 26.

The proof illegally collected by a private person

Although in theory, the exclusion of the irregular proof is excluded, the Supreme court of appeal of Belgium admits, since stops of 1990 and 1991, that such evidence can be produced in justice when, on the one hand, the representatives of authority made themselves no irregularity and when, in addition, there is not any bond between the irregularity made by a third and the communication of proof with investigators 27. Consequently, “the circumstance that the denouncer of an infringement in had knowledge because of an illegality does not affect the regularity of the proof obtained later on without illegality” 28. If the judge must indeed draw aside the proof of the infringement when this proof “was obtained illegally is by the authorities in load of the investigation, the observations or the continuations, maybe by the denouncer of this infringement, a punishable fact or in another manner” 29, in revenge can be produced in justice the proof which results from an illegality provided that this illegality was not made, by the authority or the denouncer, in order to establish the infringement, but was it made from a third and then fell regularly between the hands from the denunciation or the authority.

In a stop of June 27, 2003, the Court of Appeal of Liege summarizes this teaching by stressing that “it judge cannot declare an infringement established if the proof in were obtained following a punishable fact or in a another irregular way, that is to say on behalf of the authority in charge of research, of observation or of the continuations as regards infringement, is on behalf of the denouncer of the infringement”; but that “however, the judge can refuse to draw aside a proof collected following an illicit act when the third, via which this proof arrives at the investigators, is itself foreign with any illicit act” 30.

24 Cass., December 14, 1999, Pas., 1999, I, n° 678.

25 Cass., January 20, 1999, Not., 1999, I, n°31.

26 Cass., February 18, 2003, e.c. Vercauteren (P.02.0913.N). On these recent developments, voy. J. Garden, “right of defense in the decisions of the Court of cassation (1990-2003)”, J.T., 2003, p. 609.

27 Cass., January 17, 1990, Arr. Cass., 1989-1990, n°310; R.W., 1990-1991, p. 463, note L. Huybrechts. Also Cass., 17 April 1991, Not., 1991, I, p. 736; R.W., 1991-1992, p. 403, note A. Vandeplas. These references and other references of it paragraph are borrowed from O. Leroux and Y. Poullet, “In margin of the Gaia business: admissibility of the penal proof and respect of the deprived life”, R.G.D.C., 2003.

28 Cass., May 30, 1995, J.L.M.B., 1998, p. 488, note F. Kuty.

29 Cass., February 27, 2002, http://www.cass.be.

30 Liege (6th CH.), June 27, 2003, E. C. Public ministry and other C. De Craene and others (business “GAIA”), n° 528/03. Waited is actually superfluous in the reasoning of the Court of Appeal. This one considers, in this business where was in

France

The principle is that of the freedom of the penal matter proof. Article 427 of the Code of procedure penal expects that: “Out the cases where the law has which it differently, the infringements can be established  by any means of proof and the judge decides according to his inward conviction. The judge cannot found its decision that on evidence which is brought to him during debates and contradictorily discussed in front of him”. Consequently, it is not allowed to the judge to draw aside such element of proof only to the reason that it would have been irregularly obtained, provided that this element could be the subject of a debate contradictory in front of the judge as for his convincing value 36. This rule is worth, in particular, when prosecuting civil part took evidence of manner illicit, for example in violation protection of the private life which guarantees article 9 of the Civil code or by committing the offence of attack to the intimacy of the private life of others which provides article 226-1 of the Penal code. On the other hand, jurisprudence considers that the rule of the free appreciation of the evidence carried in front of the judge so that it forges its inward conviction does not go until allowing to take support on acts police officers or legal who are regulated. Thus, the recording carried out could not be allowed of clandestine manner, by a police officer acting in the performance of its duties, of the remarks which are to him held, this was spontaneously, by a suspect person, jurisprudence considering that similar process elude the rules of procedure and compromises the rights of defense 37.

36 Voy. Cass. (crim.), March 30, 1999, Bull n° 59 (“the circumstance that documents or recordings given by one part or a witness was obtained by unfair processes does not make it possible to the examining magistrate to refuse to join them with the procedure since they constitute only evidence which can be discussed contradictorily”).

37 Cass. (crim.), December 16, 1997, Bull n° 42.

Greece

Legal status of the evidence collected in violation of the rules relating to the protection of the life

deprived.

a) In Greek right, the legal status of the evidence collected in violation of the rules relative to protection of the private life is fixed, initially, by the Constitution. Paragraph 3 of article 19 constitution, adoptee at the time of the constitutional revision of 2001 provides that “the use of evidence obtained in violation of this article [protection of secrecy of the correspondence and of communications in general], as well as articles 9 [protection of the private life, family life and 

residence] and 9A [personal data protection] are prohibited ". It is generally allowed that this prohibition is directly and immediately applicable and that it covers all the procedures legal and administrative, even in the absence of legislative standards concretizing it. By consequent, the evidence collected in violation of the rules protecting the private life must be isolated like inadmissible 38, under penalty of absolute nullity of the penal procedure in the event of use by judge 39. This is valid whatever the author of the violation (a public authority or a person deprived). However, part of the doctrines supports that the aforementioned constitutional provision does not prohibit not, in certain cases, the use of evidence illegally obtained to establish the innocence of defendant 40.

Under the terms of art 19 par. 1 of the Constitution, “the law fixes the guarantees under which authority legal is not bound by the secrecy for reasons of national safety or for the observation particularly serious offences ". Obviously, the evidence obtained in accordance with the aforementioned restriction brought to the right to the secrecy of the communication and the procedure fixed by the legislation y relative, are not “illegal” and their use in front of the penal judge is not prohibited by the new one par. 3 of art 19 41.

Catch counts evidence collected by the means of punishable acts by the law for the declaration of culpability

b) Art 177 par. 2 of the Code of penal procedure lays out that the evidence collected by the means punishable notes by the law are not taken into account for the declaration of culpability, the imposition of the sorrow or adoption of measurements of coercion. This provision does not exclude, a contrario, that the aforementioned evidence can be used to clear the defendant. However, according to even provision, similar evidence can be taken into account, following a decision of court duly justified on this point, when they are crimes liable to the reclusion to the life 42. In this case of figure, of the evidence illegally collected is admissible even if they go against the defendant. Obviously, other principles rising from the right to an equitable lawsuit (right of defense, principle of contradictory, etc) remain applicable. Jurisprudence is not yet pronounced on the constitutionality of this provision, following the adoption of art 19 par. 3 of Constitution.

Attacks with the private life made by the private people

c) art 370A of the Penal code punishes the illicit interception of telephone correspondences or of oral communications or the illicit recording of images (par. 1 and 2), as well as the use of information and of the recordings obtained by these means (par. 3). This provision covers also attacks with the private life made by private people. According to par. 4 of the aforesaid article (as amended by art 6 par. 8 of the law No 3090/2002, aiming, following the constitutional revision, with to limit the cases in which the violation of the secrecy of the telephone correspondence and of oral conversations is not punished), the use of information or recordings obtained

38 See ordinances 83-84/2003 of the Prosecutor of Thessalonique, Poinika Xronika, 2003, p. 274.

39 See Aristotelis Charalambakis, punissability of the phone-tappings and the statute, the procedural point of view, of their product, Nomiko Vima, 6/2002, pp. 1061-1072, p. 1072.

40 See Julia Iliopoulou-Stranga, “the use of evidence illegally obtained to clear the defendant after revision (2001) of the Constitution”, Poinikos Logos 6/2002, pp. 2175-2220. See also the above mentioned ordinances of Prosecutor of Thessalonique, as well as the stop No 1351/1997 of the Supreme court of appeal, returned before the revision of the Constitution.

41 law 2225/1994 specifies that the contents of the correspondence or the communication obtained following the lifting of the secrecy cannot be used or taken into account, under penalty of nullity, like means of proof to a procedure other than that for which the secrecy was raised, with an aim different from that fixed by the decision authorizing the lifting of the secrecy. However, the proper authority to raise the secrecy can authorize, by duly justified decision, the use or the catch in consideration of the above-mentioned elements of proof, in particular when it is about defense of marked in a lawsuit penal for crime or offence. Still let us add that law 3115/2003, recently adopted, punishes the violation of the secrecy of communications and institutes an Authority independent for the safeguard of the secrecy of the communications, but does not contain rules concerning the use of the evidence thus collected.

42 Signalons that the Authority independent for the personal data protection, in its Opinion 83/2002, proposed suppression of this exception.

illegally (i.e. in violation of paragraphs 1 and 2) is not punishable when it was made in front of a legal authority or of investigation for the safeguard of an interest legitimates which could not not to be safeguarded of another manière43. This reason for exemption does not concern the author or the instigator, but only the tiers44 and, according to part of the doctrines, does not raise the sanction of nullity striking the evidence obtained in violation of art 19 par. 3 of Constitution45. However, certain judgments, handed down before the revision of the Constitution, seem to admit that evidence, illegally obtained but covered by par. 4 of art 370A of the Penal code, is admissable 46.

Inadmissibility of the evidence illegally obtained and its exception

D) The inadmissibility of the evidence illegally obtained was affirmed, on several occasions, by jurisprudence 47. However, the Supreme court of appeal judged, in a civil case, that an exception to constitutional requirement of the prohibition of illegal evidence could be allowed only when it acts to protect from the higher interests recognized by the Constitution, like the right to the life 48. This jurisprudence could also apply to penal, in exceptional cases (like, by example, establishment of the innocence of marked). The courts did not have the occasion yet to interpret new art 19 par. 3 of the Constitution. One can, nevertheless, quote a decision of Supreme court of appeal which interpreted in a restrictive way the concept of “life deprived” to affirm admissibility, as evidence, of video-cassettes containing of the images taken by a camera hidden 49.

43 It should be noted that the Authority independent for the personal data protection, in its above mentioned Opinion 83/2002, has proposed the replacement of this paragraph by a provision expressly prohibiting the use of the evidence produced in violation of paragraphs 1 and 2 of the article 370A.

44 Supreme court of appeal, stop No 1709/1995.

45 See Julia Iliopoulou-Stranga, “the use of evidence illegally obtained to clear the defendant after revision (2001) of the Constitution”, COp cit., p. 2198.

46 Supreme court of appeal, stops Nos 1060/1997, 1351/1997.

47 See, among others, Supreme court of appeal, stops Nos 589/1994, 215/2000.

48 Supreme court of appeal, stop No 1/2001.

49 Decision No 1317/2001 of the Supreme court of appeal, quoted in: Julia Iliopoulou-Stranga, the use…, COp cit. (note 7), p. 2200.

OPINION NR 3..30 NOVEMBER 2003

CFR-CDF.opinion3-2003 19

Italy

Article 191 of the code of penal procedure governs the admissibility of the evidence in the Italian penal lawsuit. Under the terms of this provision,

“1. The evidence collected in violation of the prohibitions envisaged by the law cannot be used. 2. The impossibility of use can be checked, even office, in any state and authority of the lawsuit. ”

With regard to listenings of conversations or communications, article 271 of the code of penal procedure provides that:

“1. The results of listenings cannot be used if listenings were carried out apart from the cases authorized by the law or if provisions of articles 267 [defining the conditions and forms of the authorization] and 268, paragraphs 1 and 3 [methods of execution of the operations] were not respected. 2. Listenings of the conversations or the communications of the people indicated at article 200, paragraph 1 [people bound by the professional secrecy], cannot be used if they have as an aim of the facts known because of their ministry, office or profession, except if the same people testified on these facts or if they diffused them in another manner. 3. In any state and authority of the lawsuit, the judge lays out that documentation of the listenings envisaged by paragraphs 1 and 2 is destroyed, except if it constitutes the object of offence. ”

According to article 267 of the code of penal procedure, listenings must be authorized by the judge of preliminary investigations. Only in emergencies, the public ministry can lay out itself of execution of listenings. However, the judge must validate the decree of the public ministry within 48 hours. In accordance with article 268 of the code of penal procedure, listenings can be carried out only through the installations present in the offices of the Parquet floor or, in cases exceptional, through installations of the public utility or Criminal Investigation Department. If it acts listenings of communications by average data processing, the operations can be also carried out by using private installations.

Luxembourg

The use within the framework of penal continuations of the proof illegally collected

A proof collected in violation of the rules relating to the protection of the private life is drawn aside by jurisprudence as being inadmissible 50. It results from Luxembourg jurisprudence that the irregularity can originate in a violation of the European Convention of the rights of the man. And the person at the origin of this violation can even be a private person. According to one stop of the Court of Appeal of July 10, 1992, the video recordings and by magnetic tapes realized by an employer deprived without the knowledge of one as of its employees on her place of work, must be drawn aside. In the species, the Court drew aside the evidence intended to convince the employee of flight domestic, but obtained in violation of article 8 of Convention 51. Jurisprudence Luxembourg A tendency to apply Convention directly between private people.

An irregular proof, even illegal whereas it was collected in violation of Convention European of the human rights, is inadmissible and it is isolated debates. Jurisprudence Luxembourg constant observes this rule, even if the proof is irregular only with the glance general principles of droit52. It goes without saying that under the terms of the principle freedom evidence in penal matter, a judgment can be based on other elements of proof of the file 53.

50 D. Spielmann and A. Spielmann, criminal Law Luxembourg general, Brussels, Bruylant, 2002, pp. 169 and suiv.

51 C.S.J. (call corr.), July 10, 1992, Ann. Conv., 1992, 461. Voy. also, out of civil matter, the inadmissibility of a proof obtained in violation of article 8 of Convention, Trib. arr. Luxembourg, April 6, 2000, rev. trim. Dr. h., 2000, 860, note D. Spielmann: “Horizontal Effect of the European Convention of the human rights and civil proof”.

52 For example, was thus isolated a proof obtained in a penal business by a deprived person, quoting direct, by one subterfuge, even an easy way (Trib. arr. Luxembourg, (corr.), February 15, 1995, n° 354/95, not published, confirmed by C.S.J. (call corr.), November 14, 1995, n° 491/95 V, not published).

53 D. Spielmann and A. Spielmann, COp cit., pp. 160 and suiv.

Spain

The use within the framework of penal continuations of the proof illegally collected

The Organic Law 6/1985, of 1st. July, the Judicial Power, has that “the evidence obtained, direct or indirectly, in violation of the rights or fundamental freedoms, will not be able to produce legal effects " (art 11.1).

The Constitutional Court, ultimate interpreter of the Constitution, adopted the theory of the nullity of evidence obtained unlawfully: the evidence obtained in violation of the basic rights, life deprived y included/understood, will be inadmissible. The evidence derived from those which one obtained in violation basic rights are struck same sanction of inadmissibility. Practically all constitutional jurisprudence adopts this position of principle. Among the recent examples, one can to announce stops 123/2002 (of May 20, 2002), 167/2002 (of September 18, 2002) or 205/2002 (of the 11 November 2002), decisions which relate to all various aspects of the right to the respect of the private life.

However, the Constitutional Court does not draw aside radically that legal effects can be recognized with the evidence presenting of the problems of sold by auction compared to the respect of the rights fundamental, in particular right to the respect of the private life, right to the respect of the residence and right with the secrecy of the communications. In particular, the existence of evidence irregularly obtained or derived from evidence irregularly obtained, does not exclude that a decision of penal culpability is pronounced, provided that the judgment is not based exclusively on this evidence but is corroborated by other elements of evidence, as for them regular.