EU remedies ineffective for illegally obtained evidence, report finds

02 November 2021

Article by Fair Trials

A new report from Fair Trials demonstrates a lack of effective remedies to address illegally obtained evidence in EU courts. Unlawful evidence in Europe’s Courts: Principles, practice and remedies was developed for judges and prosecutors to assist in decision-making.

What should happen when evidence is obtained unlawfully? The answer is crucial. It can result in a person being convicted or cleared, trust in criminal justice systems being undermined or strengthened, and human rights being respected or ignored.

Issues of evidence admissibility in criminal proceedings have become particularly important in the EU since the creation of the area of freedom, justice, and security. The EU has increasingly invested in instruments facilitating cross-border exchange of evidence, but so far has not addressed how to verify the legality of that evidence.

The report highlights the need for improved remedies, presents potential solutions and intends to provide guidance to judges based on four founding rationales:

Reliability: Establishing the truth – whether and what criminal offence has been committed, who the perpetrator is and whether they bear criminal responsibility for their actions – is one of the main objectives of criminal proceedings.
Deterrence: Courts should exclude illegally obtained evidence to discourage law enforcement officers from committing improprieties or illegal acts in the investigation of crime.
Prevention: If a legal system sets certain standards for criminal investigations, people have corresponding rights. If those rights are violated, the suspect or accused person should not be placed at a disadvantage because of that violation and the evidence obtained through such violation should not be used against that person.
Integrity: Criminal justice is based on public trust therefore justice must not simply be done but must be seen to be done. The public will lose faith in the administration of justice if judges condone wrongdoing by state authorities too easily and permit evidence obtained by deliberate, grave or systemic abuses of power to be used in criminal proceedings.

Click here to download the report.

Launch event

During the launch event on 22 October 2021, we presented the report and discussed the current state of play and the possible solutions to improve access to effective remedy in evidentiary proceedings. Panellists explored current approaches and examined their impact on the fairness of criminal trials and on fundamental rights.

Watch Part One here.

Watch Part Two here.