The Admissibility of Tainted Evidence in Criminal Proceedings as a Rule of Law Issue Under the ECHR

Summary

This Article examines the attitude of the ECtHR towards the principle of the Rule of Law in the context of criminal proceedings. The ECtHR plays an especially important as the final arbiter of the Rule of Law standards in Europe and has deemed itself a great defender of the Rule of Law in the face of the recent backsliding in Poland and Hungary. However, despite much emphasis put on the Rule of Law, the ECtHR has consistently refused to hold domestic criminal courts accountable for tolerating the admission of evidence obtained illegally in spite of a close link between the concept of the Rule of Law and the use of evidence obtained in violation law. This approach has been determined, to a large extent, by the Fourth Instance doctrine. However, the reliance on the Fourth Instance doctrine in this regard appears to be deficient as the ECtHR has already created a limited automatic exclusionary rule for evidence obtained by torture; the Court has already recognised some exceptions to the Fourth Instance doctrine in relation to various aspects of Article 6; finally, there have always been particular Judges advocating a stricter approach to the illegally-obtained evidence under Article 6.