Auswahl der wissenschaftlichen Literatur zum Thema „Inadmissibility of evidence“

The aim of the article is to analyze the problematic aspects of finding evidence inadmissible in criminal proceedings, as well as to formulate, according to the Criminal Procedure Code of Ukraine (CCP of Ukraine) and the case law of the European Court of Human Rights (ECHR), proposals for elimination of existing shortcomings on the issue raised. In the article used general scientific and special methods that enable to obtain scientifically sound conclusions and proposals. In particular, scientific methods, such as dialectical, comparative-legal, system-structural, modelling, abstraction, generalization and logical, are applied. The problematic issues of the procedure for finding evidence inadmissible in the criminal proceedings of Ukraine are studied. The significant violations and shortcomings in collecting evidence by the pre-trial investigation bodies are under focus. The authors clarify grounds for the inadmissibility of evidence and the types of inadmissible evidence. The analysis of investigative practice and case-law enables to conclude that a violation in taking one piece of evidence in criminal proceedings may lead to finding a number of other pieces of evidence inadmissible (the doctrine of the fruit of the poisonous tree). The authors argue that the court should be proactive in resolving the issue of inadmissibility of evidence either on its own motion or on the motion by parties to criminal proceedings. The utilization of the case law of the ECHR in national law application activities are analyzed from legal perspective. The study establishes that ratio decidendi of the ECHR with regard to finding evidence inadmissible is that the issue of its inadmissibility is subject to regulation at the level of national law. The assessment of inadmissibility of evidence is the responsibility of national courts, and the ECHR is obliged to ensure that the means of taking evidence are fair.

THE White Queen, probably parodying Tertullian, boasted to Alice that she could sometimes believe as many as six impossible things before breakfast. Students of the law of evidence must occasionally perform similar feats.

The European Court of Human Rights, which focuses on the Convention for the Protection of Human Rights and Fundamental Freedoms, points to the importance of the prohibition of torture. The Court has formed its position based on the importance of Article 3 of the Convention and, consequently, the inadmissibility of the evidence obtained in violation of that article by the prosecution. This paper analyzes the practice of the European Court of Human Rights on the implementation of evidence-based activities in national legal systems, and in particular examines the requirements of the Court on the admissibility of evidence-based exercise and activity obtained in the course of work results. The paper demonstrates the ECHR's practice on the issue of torture in obtaining evidence and the consequences of using such a «method», its significance for the practice of national courts and the modernization of the position of courts in relation to the dynamics of this issue. As a result, problematic areas of Ukrainian legislation and justice were identified. The reasons for the use of torture by the authorities and the safeguards introduced by Ukraine to combat the use of such inhuman treatment by the authorities were identified. Changes in the opinion of the European Court of Human Rights on this issue and its significance for Ukraine are analyzed. The possibilities of application of the ECHR for evaluation of admissibility of evidence in criminal proceedings in Ukraine are examined. The patterns characterizing the legal positions of the ECHR in assessing the admissibility of evidence are discovered and singled out. Ukraine should take into account that the responsibilities of the state, in addition to refraining from the use of torture to obtain evidence, include the protection of people from these encroachments by third parties.

The research featured the issues of legal regulation and exclusion of evidence claimed in the court of first instance in criminal procedure. The author analyzed the legislative regulation of the procedure for the application and consideration of petitions for the exclusion of evidence, as well as some practical issues of petitions for the exclusion of evidence. The procedure for the application and consideration of petitions for the exclusion of evidence is not fully regulated by the legislator. The Criminal Procedure Code of the Russian Federation focuses on the stage of preliminary hearing, while on the merits procedure remains unsettled. The exclusion of evidence in a preliminary hearing prevents defective evidence from entering the trial. Repeated applications should be seen as an alternative to the institute of appeal, since a re-application of the petitions allows the parties to express their opinion on the decision and provide new evidence in support of their position. The resolution of the issue of the admissibility of evidence cannot be postponed to the stage of the verdict, since this contradicts the legal nature of the institution of excluding unacceptable evidence and its purposes. The author proposes to include application rules for the exclusion of evidence in the Code of Criminal Procedure at the stage of judicial investigation. The results of the present study contribute to the issue of inadmissible evidence.

The article focuses on the problem of defines the volume of evidence to be research and the system of their researching in the court of first instance including those evidence that arising in connection with changing dated 04.10/2019 in the Criminal procedural Code of Ukraine. The purpose of the article is to analyze the legislation and propose ways to improve current legislation in order to optimize procedures aimed at planning the research of evidence in the court of first instance. The current the Criminal procedural Code of Ukraine assumes that the amount of evidence to be research, the court receives not in the form of protocols, of proprietary evidence or other materials, and with a application speech, which is proclaimed by the parties at the beginning of the court session. Introductory speech is the first information that builds a court views about evidences, through which the parties intend to substantiate the substitution of their legal positions concerning the prosecution, their affiliation, admissibility and sufficiency, order of their research into Court hearings, as well as the content of other legal positions of the parties in this proceeding. During the proclamation of the application speeches, the parties cite the amount of evidence on which their position is built, after which the court must investigate the evidence submitted by them. To construct a structural and logical study of evidence, a necessary plan for such a study and establish the evidence study procedure. Under the concept of 'evidence research ' procedure, it is proposed to understand a certain sequence and order of of actions that will depend on a particular criminal proceeding. In the study of evidence, the court should consider the specifics of the proceeding; Specifics of the evidence submitted by the Parties; Focus how long it takes to study the submitted evidence. If a party raises a question about inadmissibility evidence, such doubt should be in writing decorated with appropriate evidence. A party that opposes such a written application shall refute such a statement by submitting the court its arguments. In the article analyses questions about inadmissibility evidence and making a propose to introduction procedure to recognition evidences how inadmissibility. In the presence of a substantiated position of rejection in the acceptance of evidence, the party may in writing argue about the recognition of such evidence invalid.

Inadmissibility of Evidence in Criminal Proceedings Abstract The main goal of this work is to find out exactly how the conditions of admissibility of evidence in criminal proceedings are determined by law. This issue is explained in detail not only in the so-called Rath Case, where there was a conflict of views on the requirements of the application for spatial interception, specifically in the decisions of the High Court in Prague of October 17, 2016, file no. 6 To 106/2015 and the Supreme Court of June 7, 2017, File no. 6 Tz 3/2017-I.-693. First, the work deals with individual means of evidence and their possible defects, which may result in their inadmissibility at the court. Subsequently, the author explains the differences between the concepts of ineffectiveness, inadmissibility and illegality of evidence, which is defined only by legal science, but which are essential for understanding the issue of admissibility of evidence and possible correction of inconsistencies in the Czech legal system. It also offers insight into the issue of absolute and relative ineffectiveness of evidence and then deals with the American Doctrine of Fruit from the Poisoned Tree and the views of Czech experts in the field of law on this doctrine, or other methods of assessing secondary evidence. A comparative part is added,...

The following report was written as a result of an internship in the central civil court of Lisbon, as part of the Masters in Forensic Law and Arbitration, carried out between September 2019 and February 2020. The internship consisted in accompanying the day to day work of a state judge, taking attendance to preliminary and final hearings, studying civil cases and debating relevant civil procedure theoretical questions. Some practical activities were carried out in the form of simulating sentences/verdicts and preparation of preliminary hearings (elaborating the written part of the hearing); lastly, the intervention of the judge during all the procedure was broadly simulated. The final verdict depends on the facts that were considered proved; the facts are in controversy when the parts first bring them to court; the judge must decide what corresponds to the truth and decide based on that judgment. The report has examples that go along with the theoretical explanation of legal concepts and is the product of a better understanding regarding evidence in Civil Procedure. This was made possible by the direct contact with the way evidence was considered by the judge The report is divided into two main groups.The first aims to explain essencial concepts in regard to evidence and the two systems of judging evidence in Civil Procedure, also aiming to demonstrate the current state of evidence law. In the second group the focus is shifted to specific types of evidence (by confession, documental, inadmissibility of witness deposition and ad substantiam documents), taking into account the law, authorities and case law on the subject. All is taken into account to formulate a critical evaluation and to ponder the conflict between material and formal truth
O presente relatório tem em vista apresentar o estágio curricular realizado no Juízo Central Cível de Lisboa, desenvolvido no âmbito do Mestrado Forense e Arbitragem. O estágio realizou-se entre setembro de 2019 e fevereiro de 2020 e consistiu em acompanhar o dia a dia de um Juiz de Direito assistindo a audiências prévias e finais, consultando processos e debatendo questões processuais, sobretudo. Foram realizados alguns trabalhos práticos, como projetos de sentenças e despachos, simulando-se a intervenção que o juiz tem no processo desde a preparação da audiência prévia até a decisão de mérito. Qualquer sentença de mérito pressupõe a decisão sobre factos que, no momento da sua alegação, são controvertidos; depois da produção de prova sobre eles, cabe ao juiz valorá-la; os factos provados, com base nos quais cabe decidir, são o resultado dessa valoração. O contacto constante com a produção e valoração de prova durante o estágio contribuiu para completar o relatório com exemplos práticos e permitiu uma melhor compreensão do direito probatório, da forma como é entendido pela doutrina e aplicado pelos Tribunais. O relatório divide-se em duas partes. Na primeira enunciam-se conceitos teóricos basilares sobre a prova e explicam-se os diferentes sistemas de valoração da prova, assim demonstrando em que termos é visto atualmente o direito probatório. Na segunda parte, focamos a nossa atenção na prova por confissão, prova documental, nos casos de inadmissibilidade da prova testemunhal e nos documentos ad substantiam. A abordagem a estes temas tem por base a lei, doutrina e jurisprudência sobre os mesmos, com que fundamentamos a nossa apreciação crítica global e, de forma mais abstrata, o confronto entre verdade material e formal.

In 2016, the jurisprudence of ICSID tribunals and ad hoc committees largely followed established lines. However, two jurisdictional decisions evidenced that the Salini test seems to have been almost eviscerated. The use of the GATS MFN clause to access investment arbitration was rejected in Menzies and forged documents led to the inadmissibility of investment claims in Churchill Mining. The Philip Morris case addressed core issues of host state regulatory measures and investment protection standards. Several cases clarified the role of compensation as a legality requirement for expropriation, while others made the due diligence standard states owe under full protection and security more precise and one tribunal held that an investor could not even import more favourable substantive standards under the applicable MFN clause. Two annulment committees ruled on the impartiality and independence of arbitrators and the issue of “surprise arguments.”

AbstractIn this chapter we focus on the consequences of Sentenza 238/2014 for the Italian judiciary. The judgment of the Corte Costituzionale obliges the Italian tribunals to admit claims for the reparation of victims or the heirs of victims and to decide on the merits. In this context, a series of difficult legal questions arise that require consistent answers. The practice shows, however, that consistent answers cannot be taken for granted as long as the decision is in the hands of lower-level tribunals. The questions to be solved concern, firstly, who can bring a claim: the victims only or—in cases where they are no longer alive—also their spouses, children, or even grandchildren and other family members? This raises a second question namely whether there is any time limit for bringing claims, which of course touches upon more general concerns, such as intertemporal law, statutory limitations, prescriptions, forfeiture and inadmissibility due to reparation agreements. Thirdly, there is the question as to the specific nature of the reparations: for example, financial reparations and their calculation standards, or satisfaction only? A further question arising from all decisions granting reparation relates to the execution of the judgments, as it seems rather illusory that Germany will comply voluntarily with such judgments. An additional aspect the chapter addresses is the broader impact of the decisions of the Italian judiciary: the non-recognition of state immunity before Italian tribunals will make Italy an attractive forum for similar claims, evidence of which has already emerged. Furthermore, the decisions of the tribunals will serve—although certainly involuntarily—as precedents in similar cases not only in Italy. Such effects will concern issues such as (a) the reparation of war-related claims on an individual basis and (b) their consequences for the readiness of states to terminate armed activities by concluding peace treaties and reparation agreements on a lump sum basis. With a view to actual armed conflicts that are mostly not international armed conflicts the question has then to be asked (c) whether individual reparation claims will lead to discriminatory consequences as reparation will probably only be realizable for victims of war crimes committed by state organs and not those committed by non-state actors. The chapter will then conclude by trying to assess more in general the task of constitutional and/or supreme courts to balance the consequences flowing from their decisions against their power or intent to enhance the development of (international) law.

This chapter discusses the statutory exceptions to the inadmissibility of hearsay evidence in criminal cases that were created by the Criminal Justice Act 2003. The impact of the Human Rights Act 1998 on the admissibility of hearsay evidence is discussed, including the important cases of Horncastle and Al-Khawaja and Tahery v United Kingdom, where the Supreme Court and the European Court of Human Rights came into conflict over whether an accused may be convicted where the ‘sole and decisive’ evidence against him is hearsay. The common law exceptions preserved by the Criminal Justice Act 2003 are then considered—res gestae. The chapter ends with discussion of the abolition of hearsay in civil proceedings by the Civil Evidence Act 1995.