Do We Eat Apples from a Poisonous Tree?

2017. február 05. 17:37 - Gord.ius

Part III. - Constitutional and Extra-Constitutional Approaches to Exclusionary Rules in Europe

Is exclusion of evidence considered a Trojan Horse in Europe? Do we really need to live by ancient wisdom and beware all Greeks bearing gifts, even they are in the form of forward-looking constitutional rules? Through an overview of European constitutions, we shall have a look at how differently European countries treat the issue of exclusion and what are the most important “pros and cons” in a comparative perspective.


How else?

Picking up from discussing the “how”-s and “when”-s of exclusion of evidence in Part 2, now, in order to understand European approaches to the (constitutional) exclusion of evidence obtained in violation of fundamental rights (especially of privacy), we first should look carefully at the Greek regulation. In Greece, the constitutional legislator introduced a constitutional exclusionary rule with absolute and universal effect in 2001, which extends to all procedures, civil, criminal and administrative included. Before laying out the intimate workings of the Greek model, we should first focus on some of the methodological problems we encounter when engaging in a comparative investigation of different legal systems.

In the previous Part 2, we have looked at the American experience of excluding “tainted evidence” from criminal and civil proceedings. Now the question arises: how, and if yes, how adequately, do the previously seen Anglo-Saxon patterns support the rethinking of some of continental procedural laws and constitutional frameworks? [1]

This is a question we need to address when our objective is to highlight the added value of a comparativistic approach for legal development and when every country applying universal, constitutional exclusion (and those familiar with the possibility) experiences intensive legal discourse on the actual necessity and efficacy of such a system.

Italian authors Breda and Vricella argue that differences in the applicable procedural regimes in certain countries do not flow from the fact that these countries’ legal systems belong to different legal families from a comparative law point of view. [2] Patterns identified in the Anglo-Saxon system are applied analogically as – based on the above premise - we do not essentially differentiate between criminal and civil proceedings in terms of the principles of exclusion, when we investigate how to regulate the exclusion of unlawfully obtained, privacy-infringing evidence on the level of the constitution. (Therefore, any conclusions we reach will be universal, which could be applied – in theory – to all procedural regimes.)

In addition, evidence law in common law legal systems does not handle evidentiary issues by strictly distinguishing between civil and criminal matters, but – in essence: “Ever since evidence law emerged as an integrated, systematic body of doctrine in the late 1800s and early 1900s, it has treated criminal and civil cases largely alike. Indeed, evidence law to a significant extent was itself a product of treating criminal and civil cases alike.” [3]

Many foreign examples are known in terms of the exclusion or restricted admissibility of unlawfully obtained evidence in violation of fundamental rights, in both common law and the continental legal systems.

However, we need to make very important distinctions in terms of those European countries that chose to apply it. There is a difference between countries opting for the absolute and universal model and those leaning toward more lenient solutions on the level of the constitution.

In general, when it comes to the nomenclature of unlawfully obtained evidence (which violates the rights of others), European countries [4] usually categorize these as evidence obtained: 

  • through a violation of certain fundamental rights (e.g. life, liberty and dignity, property),
  • through a fundamental rights violation,
  • through a violation of privacy rights (e.g. secrecy of correspondence and communications, sanctity of the private home),
  • through improper or illicit conduct,
  • unlawfully,
  • unfairly,
  • unconstitutionally,
  • through the commission of a crime (as a specific category separate from all of the above).

On the level of the constitution, we observed that in the countries subject to our analysis, there are mainly two types of solutions for exclusion:

In the first group we find countries, which apply universal, automatic and absolute exclusionary rules, specifying the protection of privacy as their objective, and in addition certain other fundamental rights as well. However, these restrictive provisions have not been included among the constitutional regulations on the right to a fair trial.

Introduced in 2001, the constitution of Greece, in its chapter of fundamental rights, and not specifically among the fair trial provisions, contains specific privacy-protective measures under Article 9, 9A and Article 19(1) making reference to an absolute and automatic rule. This rule is set forth under Article 19(3), which specifies that the “use of evidence acquired in violation of the present article and of articles 9 and 9A [i.e. any violation of privacy and therefore also personality rights] is prohibited.” This means that the secrecy of letters, communication and correspondence is absolutely inviolable. Under Article 19(1), the legal guarantees, “under which the judicial authority shall not be bound by this secrecy for reasons of national security or for the purpose of investigating especially serious crimes, shall be specified by law.” [5]


The constitution of Portugal, modified in 2005 to this effect, under its Article 32(8) prescribes among the provisions relevant for criminal proceedings that “all evidence obtained by torture, coercion, infringement of personal physical or moral integrity, improper intromission into personal life, the home, correspondence or telecommunications shall be deemed null and void.” [6] This is another example of an absolute and automatic exclusionary rule, although it does not extend to procedures other than criminal.

In the second group we find countries, which do not limit absolute and automatic exclusionary rules to the protection of certain fundamental rights, especially privacy, but position these protections as part of those on the right to a fair trial.

The constitution of Croatia, modified in the year of the above-mentioned Greek amendment, contains a universal, absolute and automatic exclusionary rule under Article 29, which sets forth that “evidence illegally obtained shall not be admitted in court proceedings.” [7]

The constitution of Italy, modified in 2007, contains a provision under its Article 111 on fair trials, which declares that “the law regulates the cases in which the formation of evidence does not occur in an adversary proceeding with the consent of the defendant or owing to reasons of ascertained objective impossibility or proven illicit conduct.” [8] (One might think that this element is the odd one out in our typology, as it generally refers to all proceedings within its ambit, although does not favor an absolute and automatic exclusion. Rather judicial discretion in the application of laws regulating exclusion becomes emphatic.)

The constitution of Ukraine, modified in 2014, contains in its Article 62 – on criminal procedural guarantees relevant to the right to a fair trial in the chapter on fundamental rights - a section, which specifies that “an accusation shall not be based on illegally obtained evidence [neither] on assumptions. All doubts in regard to the proof of guilt of a person are interpreted in his or her favour.” [9] As we can see the Ukrainian fundamental law incorporated the reference to the exclusionary rule into the established principle of in dubio pro reo.


In a separate examination, we shall now look at those countries that apply exclusionary solutions outside of the constitutional frame, in their procedural laws or judicial practice: 

  • The absence of exclusionary rules incorporated into the constitution is obvious in the Anglo-Saxon legal system. As we could have seen previously in Part 2, the United States invokes protections against unlawfully obtained evidence from the interpretation of the Fourth and Fifth Amendments on the federal level, while on the state level the state supreme courts interpret relevant provisions of the state constitutions. In the American system, these references are relevant to criminal procedure, almost without exception, but their rationales can analogously be analyzed in a comparative perspective. 
  • In Germany, the constitution does not contain an exclusionary rule and the constitutional regulation of the right to a fair trial is not of many words (Article 103), and neither are those on the protection of privacy (Article 10). These provisions are given content and meaning by the Bundesverfassungsgericht, the German Constitutional Court. As opposed to their US counterpart interpreting privacy as liberty and security, the German constitutional court looks at privacy issues through the lens of human dignity, as it is conventional in continental legal systems. Further guarantees for privacy are constructed from a general right of personality. (Hungarian constitutional jurisprudence bears certain similarities to this approach and is known to heavily rely on German jurisprudence in their decisions.) 

In order to be able to assess the above solutions regarding the exclusion of evidence, it is important to clarify whether the fact of unlawful acquisition generally forbids the use of such evidence in civil and criminal matters as well, or this fact is without prejudice to the use of such evidence? [10]

Secondly, we shall also determine whether it is realistic that continental (European) judges are not influenced by unlawfully obtained evidence that violates the rights of others in making their decisions? [11]

The above-cited Breda and Vricella distinguish between two types of evidence in relation to the above questions, when comparing English and Italian regimes of exclusion: 

  • On the one hand, there is evidence that significantly influence the capability of the parties to support their claims;
  • On the other hand, there are such that assist the judge in the clarification of the facts of the case.

They argue that evidence ad (i) is much more likely to be admitted in both legal systems, while evidence ad (ii) will most likely be refused by Italian (continental) courts, who thus act for the protection of the persons suffering a violation of their fundamental rights. In Italian criminal procedure, moreover, there is a distinction between evidence obtained through the violation of procedural rules (these are inadmissible), and those obtained by unlawful conduct (which will be admissible). [12]

For us, the following conclusion can be drawn from all of the above.

If we juxtapose the right to provide evidence as part of the right to access to justice in a fair trial with the right to protect one’s privacy in a fair trial (be it civil or criminal), then only one measure is able to govern judicial discretion regarding the admissibility of evidence which is in violation of the rights of others, and especially of the right to privacy. This measure is a fundamental rights standard that can flow from an international convention, such as the ECHR, or from the national constitution, which binds the judiciary.

Within this framework, we shall always prioritize the interests of the parties suffering a violation of their privacy without expecting any result from judicial discretion. Judges ought to conduct an indispensable necessity and proportionality test in terms of assessing the extent of the violation, and in this context judicial conduct would be directed at predicting what possible effect will the unlawful evidence in violation of a fundamental constitutional right have on the fairness of the proceedings. Judges are no fortune-tellers, however.


As a solution based on the above rationale, the Greek constitution applies a universal, absolute and automatic exclusionary rule, which – at least in theory – restrains and constrains judicial discretion on the issue of privacy violations in the process of evidence gathering, taking due regard of 

  • fundamental rights standards enshrined in the constitution and in international conventions as well as
  • concurrent, adversary “fundamental rights positions” that are established through the process of evidence gathering in a trial.

When we hear about a Greek gift, we always also hear: “timeo Danaos et dona ferentes”. This roughly translates into beware of Greeks bearing gifts. Some might think that the exclusion of evidence on the level of the constitution is a Trojan Horse, as legal academia aware of it is quite split on the necessity and efficacy of the Greek rule. However, for comparative purposes and in examining possible future legal transplants, we consider it to be exemplary.

Just as a Trojan Horse, it is a very peculiar creature as it has only developed through jurisprudence from the 1970s up to a point when in the 1990s the value and role of parliamentary and legislative responses to issues brought about by unlawfully obtained evidence in violation of fundamental rights became suddenly more important.

According to Kaissis, the explosive evolution of technology and the new threats against privacy established thereby caused the Greek legislator to rethink the constitutional and procedural regulation of the issue. [13] Between 1991 and 1993 criminal law measures were introduced to combat and sanction covert methods of “evidence gathering”, and introduced the automatic exclusion of such evidence, but only at the level of procedural laws. In 1996, through a criminal law reform evidence obtained through the commission of a crime was regulated, with automatic exclusion attaching to the introduction of such evidence, before the 2001 pioneering amendment came into force. [14]

In the more recent literature, Triantafyllou writes that according to predominant theoretical views in connection with the constitutional exclusionary rule there is nothing wrong with judicial discretion in terms of the weight of evidence and the severity of the violation, except in the case of more severe crimes, intrusions against human dignity, e.g. torture. According to Triantafyllou more radical views support the exclusion of all evidence obtained through a violation of fundamental rights. [15]

If we were to look for flaws in the Greek constitutional exclusionary rule, thus supporting those more radical in Triantafyllou’s views, we might say that it only prohibits the use of evidence obtained through the violation of privacy with erga omnes effect. [16]

Nonetheless, procedural laws and judicial practice – with varying success and extent – still provide for exclusionary rules regarding evidence obtained through violations of other fundamental rights.

The comparative (Anglo-Saxon-continental) analysis of this Greek rule is carried out by Giannoloupoulos through looking at the system of judicial discretion applied in Wales and in the United Kingdom simultaneously with the Greek constitutional exclusionary rule, which is absolute and automatic. He is of the opinion, and we might agree, that judicial discretion (providing room for those who apply the law to examine the admissibility of unconstitutionally obtained evidence) is ab ovo incompatible with any system of exclusion inherently tied to fundamental rights. [17]

The essence of applying an absolute exclusionary rule is that the constitutional legislator will take charge of any discretion that might be necessary, by juxtaposing private and public interests (also assessed in discretionary systems) based on which the exclusionary rationale will be based and the relevant rule set forth in the fundamental law itself. If, eventually, after the constitutional legislator “did the deed” and the exclusionary rules then are included among the provisions safeguarding the right to a fair trial as guarantees of privacy, then we might be on the right track serving the public interest of building or increasing public trust in the administration of justice.

However, if regardless the above fundamental rights standards, we continue to allow room for judicial discretion on these issues, then this might, but in time will lead to 

  • the decrease in the legitimacy of any absolute and automatic constitutional exclusionary rule,
  • the necessity of constructing such procedural checks for these cases, with the help of which we can only find ways to effectively remedy the effects of the judicial decision in violation of our fundamental rights only through constitutional review.

 keep-calm-and-validate-privacy.pngDr. Sulyok Márton


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[1] On the comparative examination of exclusionary rules all over the world, see: Stephen C. Thaman (ed.): Exclusionary Rules in Comparative Law. Springer, Dordrecht Heidelberg New York London, 2013. 454. p.

[2] Vito Breda – Matteo Vricella: English Pragmatism and Italian Virtue: A Comparative Analysis of the Regime of Illegally Obtained Evidence in Civil Law Proceedings between Italy and England. Maastricht Journal of European and Comparative Law, (3)2014:428-443

[3] David A. Sklansky – Stephen C. Yeazell: Comparative Law without Leaving Home: What Civil Procedure Can Teach Criminal Procedure, and Vice Versa. Georgetown Law Journal. (94)2005:683-730, citation from ibid, 728, with detailed analysis on borrowing ibid, 727-732. (online)
In the American context, this article argues how comparison with the continental legal system, virtually without exiting the American legal system can be used to the mutual improvement of the different procedure laws. One example they use is the examination of questions of law regarding evidence.

[4] For the American typology: Donald E. Wilkes, Jr.: A Critique of Two Arguments Against the Exclusionary Rule: The Historical Error and the Comparative Myth. Washington and Lee Law Review. 32(4)1975:881-917. Typology on 882. (online) We have covered this system in Part 2.

[5] All citations from the Greek constitution are based on the constitutional text stored on the Constitute Project:

[6] All citations from the Portuguese constitution are based on the constitutional text stored on the Constitute Project:

[7] All citations from the Croatian constitution are based on the constitutional text stored on the Constitute Project:

[8] All citations from the Italian constitution are based on the constitutional text stored on the Constitute Project:

[9] All citations from the Ukrainian constitution are based on the constitutional text stored on the Constitute Project:

[10] Athanasios Kaissis: Exclusion of Illegally Obtained Evidence in Greek Civil and Penal Proceedings – An outline. Jens Adolphsen, Joachim Goebel, Ulrich Haas, Burkhard Hess, Stephan Kolmann, Markus Würdinger (hrsg.): Festschrift für Peter Gottwald zum 70. Geburtstag. C.H.Beck, 2014. esp. 309-310.

[11] Dimitrios Giannoloupoulos: The exclusion of improperly obtained evidence in Greece: putting constitutional rights first. International Journal of Evidence and Proof. (11)2007:181-212, esp. 189-190.

[12] Breda – Vricella, op. cit., supra, 2014, 14.

[13] Kaissis, op. cit., supra, 2014, 310.

[14] Kaissis, op. cit., supra, 2014, 311-314; Giannoloupoulos 2007, 183-184.

[15] Georgios Triantafyllou: Greece: From Statutory Nullities to a Categorical Statutory Exclusionary Rule. Stephen C. Thaman: Exclusionary Rules in Comparative Law. Springer, Dordrecht, Heidelberg, New York, London, 2013, 263.

[16] On the exclusion of evidence obtained through violation of privacy in Greek criminal procedure, see: Triantafyllou, op. cit, supra, 2013, 274-275.

[17] Giannoloupoulos, op. cit., supra, 2007, 185.


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