Human rights belong to all persons by virtue of their human nature. Criminal justice as a vital institution of our society plays a crucial role in maintaining public order, security and justice. However, there аre serious problems of human rights violations by criminal justice agencies. Nowadays while newspapers focus mainly on the dramatic criminal issues: murder, rape, torture, disappearances, numerous institutions, which are charged with the duty of implementation of human rights standards at international, regional and local levels, most frequently deal with human rights violations during criminal proceedings, especially during the most confidential stage of criminal investigation. The growing internationalization of the criminal law administration points out to the fact that such cases are becoming even more important.
It becomes really difficult to control and provide protection of fundamental human rights during the process of criminal investigation, when a suspect is least protected and more vulnerable. In some parts of the world unacceptable methods of obtaining evidence, such as coercive interrogation with the use of torture or other ways of inhuman treatment, are still practiced dеspite being illegal. Furthermore, the credibility in evidence obtained from the unreasonable search and seizure shall be put in question.
It is necessary to point out that while some rights, such as the right to freedom from torture, are vаlid for everyone at all times, the right to respect for one's private and family life may, however, be jeopardized, for instance through the various means of wiretapping. But do the ends always justify the means in trying to obtain information we think a detainee may have?
The "fruits of the poisonous tree" concept, which in numerous cases plays a crucial role for determination of guilt or innocence of the accused, must be carefully examined, as the admissibility of evidence, obtained unlawfully with serious violations of fundamental human rights, is an ambiguous issue not only in national jurisdictions, but also in the jurisprudence of the European Court of Human Rights. The most legal problems concerning evidence arise in criminal cases. Admissibility of evidence, obtained within the violations of human rights, shall be carefully examined and therefore restricted, because in number of cases such evidence is the only evidence for accusation, which might lead to wrongful conviction. Obviously, it undermines the rational of criminal justice, which is to avoid wrongful conviction. Thereupon, according to the opinion of the English law professor I.Dennis, unlawfully obtained evidence raises two kinds of problems concerning admissibility [1] . Despite the fact that both of them concern fairness and the principle of legality, they relate to two different aspects of fairness. Therefore, one problem is the impact of the evidence on rectitude of the decision. The other problem is the impact of the evidence on the moral and expressive authority of the verdict. Both these problems together with the problem of serious violations of human rights in obtaining evidence will be analyzed in the comparison of several domestic jurisdictions and the jurisprudence of the European Court of Human Rights.
The main focus of the I.H.Dennis' book "The law of evidence" is criminal evidence and its doctrinal analysis in common law system. The author examines different aspects of the law of evidence within the example of the English legal system. The author describes the theory of evidence, psychological research on information processing and retrieval, the process of socio-legal work on police investigations and the projects of jury research. Professor Dennis emphasizes that the law of evidence makes a significant influence not just on the presentation of evidence at trial but also on the collection of evidence prior to trial. Therefore, evidence one gets at trial is only as good as the evidence collected by the parties prior to trial. The author's research shows that the process of obtaining evidence predetermines the outcome of the final judgment. It leads to the conclusion that the decisions taken before trial during the process of the collection and preparation of evidence are the most crucial decisions taken in the whole adversarial process. In the first part Dennis describes the question of relevance and admissibility of evidence and comes to the conclusion that the evidence, which is irrelevant, is inadmissible. Having examined the exclusionary rule in the common law system, Dennis found out that even logically relevant evidence, which was obtained improperly, shall be forbidden for admissibility. In chapter 8 of the book Dennis examines the question of how the law of evidence deals with evidence that has been obtained by illegal or unfair means. In his research he explains why exclusion of non-confessional improperly obtained evidence has tended to be regarded as exceptional in common law system. The author argues that the principle of legitimacy and integrity of adjudication explains the reasons why a court may refuse to admit evidence, which has been obtained unlawfully. But then the question arises: what is the test for legitimacy that shall be applied in such case? The author is more concerned to use the concept of legitimacy as a limiting doctrine to explain why courts are justified in excluding otherwise apparently probative evidence because of the disrespect it would engender in courts which act upon evidence obtained by illegal methods.
Professor Michael Stockdale gives general overview of the role of the law of evidence, including confessions and improperly obtained evidence. The author tries to present the most significant principles of the exclusionary rule in the common legal system, using the examples of the relevant cases. Having examined the jurisprudence of the common law systems, the author comes to the conclusion that when considering whether a confession was obtained by oppression the court is entitled to take into account the characteristics of the defendant. The research conducted by the author shows that there is no common law defense of entrapment and the court does not posses discretion to exclude prosecution evidence at common law unless the probative value of the evidence is outweighed by its prejudicial effect. Another conclusion, which constitutes a significant importance for the jurisprudence of the European Court of Human Rights, is that the admissibility of unlawfully obtained evidence will not necessarily violate Art. 6 of the European Convention on Human Rights even where the evidence was obtained in violation of Art. 8. Such general overview gives the idea of the role of improperly obtained evidence in criminal proceedings in the common legal systems.
Profound comparative analysis of exclusionary rule is conducted in the Stephen C. Thaman's article "Fruits of the poisonous tree in comparative law", where the author examines historical development of the exclusionary rule in American and European continents and finds out that originally courts never questioned how evidence was obtained, but decided admissibility solely on relevance and probative value considerations. Further the author gives a brief review of the types of exclusionary rules articulated in modern codes, constitutions, and jurisprudence and then explores how these rules are interpreted when it comes to excluding the "fruits" of constitutional violations of the right to silence and human dignity during police interrogations and the right to privacy in one's home and confidential communications. Having conducted the comparative analysis, Stephen C. Thaman comes to the conclusion that whether a country begins with a seemingly categorical exclusionary rule for serious constitutional violations, or allows judges great discretion in deciding whether to use fruits of unconstitutional police behavior, the search for truth has largely prevails over the rights, guaranteed by the Constitutions of different countries, in relation to "fruits of the poisonous tree."
The question of admissibility of improperly obtained evidence in the jurisprudence of the European Court of Human Rights is examined in the Martha Spurrier's article "Gafgen v Germany: fruit of the poisonous tree." The author analyses a recent controversial decision of the European Court of Human Rights, in which the Court ruled that the presence of evidence obtained as a direct result of inhuman treatment does not render a trial automatically unfair. The analysis closely examines the reasoning behind the Court's decision and considers its implications for law enforcers and human rights advocates. The author argues that the Court bases its decision on two controversial distinctions which may prove groundless and, as a result, it would allow a decrease of principled language which may have negative consequences for human rights protection under arts 3 and 6 of the European Convention on Human Rights in criminal cases.
In the article "Special investigation techniques, data processing and privacy protection in the jurisprudence of the European Court of Human Rights" professor Toon Moonen tries to determine whether it is possible to find a balance between the duty of government to safeguard its citizens and the individual rights of those protected. The jurisprudence of the European Court of Human Rights is in the center of the analysis. The author examines the approach of the European Court to the protection of the right to privacy in cases of searches, wiretapping and surveillance, organized by the government for the security reasons. In the Part V the author deals with the right to fair trial and admissibility of evidence obtained from surveillance and wiretapping by the European Court of Human Rights. Professor Moonean indicates the distinct position of the Court, which is based on non-interference within the jurisdiction of national courts. The author argues, that the Court's conclusions on the merits of examined cases and admissibility of evidence rely on legal certainty, the necessity to use less intrusive techniques and proportionality of the interference with one's privacy or due process rights to the goals government seeks to defend.
