The standards invoked in jurisprudence either involved considerations of the proper administration of justice see infra , 3. Intervention is perhaps still less admissible in the particular form it would take here; for, from the nature of things, it would be reserved for the most powerful States, and might easily lead to perverting the administration of international justice itself.
The Court has referred to the principle when explaining many of its procedural decisions, such as the inadmissibility of additional claims during the proceedings, 44 the joinder of proceedings, 45 the removal of a case from the General List due to a manifest lack of jurisdiction, 46 the conduct of proceedings after non-appearance of a party, 47 and the invocation by a party of a new jurisdictional basis.
The more widespread interpretation in the subsequent debate 51 is that, as the Court did not discuss the admissibility of such evidence in Corfu Channel , it also did not establish a general rule on inadmissibility. Although the ICJ has therefore taken a clear stance on unlawful obtaining of evidence in principle, it has not highlighted an appropriate procedural consequence.
An inquiry as to why the ICJ did not address the issue of admissibility may properly start with the important fact that Albania never challenged it. One could also argue that the ICJ may well have considered inadmissibility, but decided against it by weighing the territorial intrusion against the clarification of exceptionally dangerous circumstances involving mines in international waters. The specific value of the principle of good faith in the context of admissibility of evidence was recognized in the Methanex v.
United States arbitration, where the tribunal was faced with evidence obtained through trespass. The respondent challenged the introduction into evidence of documents which were allegedly copied illegally from private files of a witness and his company.
As a general principle, therefore, just as it would be wrong for the USA ex hypothesi to misuse its intelligence assets to spy on Methanex and its witnesses and to introduce into evidence the resulting materials into this arbitration, so too would it be wrong for Methanex to introduce evidential materials obtained by Methanex unlawfully. In its analysis, the tribunal considered a number of factors, such as whether the deliberate trespassing onto private property and searching of trash violated national laws, and whether the evidence was of great significance or whether it could be substituted.
The Methanex award confirmed the relevance of the principle of good faith for the problem of illegally obtained evidence, and other investment tribunals seem to have followed suit. In EDF v. Romania , the tribunal excluded an audio-tape, meant to prove an allegation of corruption, primarily on the basis of a lack of authenticity see also infra , 3.
In particular, it did so with reference to the principle of good faith:. Admitting the evidence represented by the audio recording of the conversation held in Ms. In that regard, the Tribunal shares the position of the Methanex award. Even if not an obligation of result, the nature of good faith as an obligation of conduct seems to require — at least in the eyes of investment tribunals — some reflection in a rule on admissibility.
In the seven decades that have passed since Corfu Channel , old issues remained unresolved, and more challenging factual scenarios have been added to the discussion.
In November , the online platform WikiLeaks published around , confidential diplomatic cables from embassies, consulates and missions of the United States, which were leaked by a member of the United States Army. In Ayyash et al. In the specific context of WikiLeaks documents, however, the doubts as to their probative value or veracity was to some extent contradicted by an arbitrator in ConocoPhillips v.
Here we have a full narrative of the negotiations, with a high degree of credibility, given the level of detail that tallies perfectly with what we know of the rest of the record. It is a narrative that radically confutes the one reconstructed by the Majority […]. There is, arguably, a strategic dilemma inherent in the choice of whether to plead illegality or unreliability for counsel attempting to effect the exclusion of a document.
If the state from whose archives, for instance, the evidence was stolen or leaked claims exclusion based on illegality, this may come close to an implicit confirmation of the authenticity of the documents because, in fact, state facilities are claimed to be their origin. An important conceptual question arising in some cases is whether it is relevant who obtained the evidence unlawfully and who is using it in court. This question deserves attention in light of two situations. The first would be one where information was obtained illegally by someone, put into the public domain, and subsequently used by an uninvolved party in proceedings.
The second situation relevant to this inquiry would be where the evidence was, although not in the public domain, nevertheless obtained by someone other than the party using it.
Council of the European Union , the ECJ ruled in favor of admitting diplomatic cables submitted by the applicant which originated from WikiLeaks. In my opinion, the cable has as a result lost its inviolability […]. Based on the case law of both the ECJ and the English Court of Appeal, it therefore appears not established that the unlawfulness remains inherent in the evidence when used by a third, uninvolved party.
Accordingly, it could be argued that evidence obtained through breaches of international law constitutes a wrong-doing from which the responsible party should not be able to take advantage or receive rights. The answer perhaps lies in approaching each case on its merits with a possible presumption, based on the general principles that no one should benefit from his own wrong-doing and that no right can arise from a wrong, that evidence obtained in violation of international law is in principle inadmissible.
The relevance of the principle may, however, be weakened in cases where the unlawfully acquired evidence was obtained without the involvement of the party introducing it, as the right or advantage must be acquired by the wrongdoer himself in order to invoke these principles. This review of pertinent cases reveals two things: First , the lack of a generally binding rule on the admissibility of unlawfully obtained evidence and the dire need for clearer rules as similar incidents are increasing.
Australia , a case in which Timor-Leste contended that documents were apprehended by Australian agents in the offices of one of its legal advisers that included correspondence with the Government of Timor-Leste relating to a pending arbitration between the two states. The second revelation the discussion of case law has brought is that, despite the need for regulation in this area, the cases discussed afford some clarification as to potential legal grounds for excluding unlawfully obtained evidence and common factors considered by judicial bodies in their dealings with it.
Corfu Channel, Methanex and EDF illustrate the significance of general principles of law for decisions on the admissibility of such evidence, particularly the principle of good faith. At the same time, Persia International Bank and Bancoult III demonstrate requirements as to the link between the person setting the wrongful act, and the party using the resulting evidence in court, making way for a potential exception for publicly available information.
Lastly, an alternative avenue to exclude such evidence could be in assessing its probative value, as shown in Ayyash. For the purpose of identifying elements to be weighed in such a test, the criteria considered by the cases above may appear useful. These are, in particular, the gravity of the violation to obtain the evidence compared to the gravity of the wrong for which it is used as proof Corfu Channel ; whether the probative value of it its reliability, authenticity and accuracy substantially outweighs the need to ensure a fair trial Ayyash et al.
These factors shall be considered in more detail in the concluding discussion on a potential balancing test see infra , 5 , together with legal implications derived from national systems.
As already briefly discussed in the context of the principle of good faith see supra , 3. The second track of this discussion on general principles examines whether a general principle of inadmissibility of illegally obtained evidence may be derived from domestic legislations.
At the outset, it is important to emphasize two things about this comparative survey. First , this survey deliberately excludes exclusionary rules in criminal procedure, which are concerned with the protection of the rights of an individual against intrusions by the powerful apparatus of its government. As explained above see supra , 2 , this version of the principle may not be appropriate for use in inter-state cases.
This article therefore examines rules and principles of civil procedure and constitutional laws applicable to civil proceedings to ascertain whether they regulate the admissibility of illegally obtained evidence.
Second , there are obvious limitations to this comparative legal survey, some of which form part of recognized problems in the comparative legal discipline generally.
However, a representative number of legal systems has been surveyed, providing results that are highly useful in understanding domestic treatment of the issue. The present comparative study examines 27 national jurisdictions representing all five U. Regional Groups. The results of the present survey reveal that, in civil cases, the evidence is either 1 generally admissible nine countries , 2 generally inadmissible six countries , 3 inadmissible if its discovery either violated a constitutional right four countries , or 4 inadmissible if a balancing of interests favors its exclusion eight countries.
Many of the jurisdictions allowing general admissibility in civil proceedings do in fact limit admissibility in the criminal context. Generally, such evidence will therefore be admissible in civil court. Inadmissibility of illegally obtained evidence in civil cases has proven to be not quite uncommon. The survey has revealed that six countries make inadmissibility the general rule. At the preliminary hearing , the judge granted my motion to suppress all the evidence.
California Penal Code Once the evidence was suppressed, the prosecutors had to dismiss the case. This is why you need a great Los Angeles criminal defense attorney to come in and make sure the police are doing things the right way. If they are not, we can challenge them and try to get rid of the case. Contact us for a free case evaluation at I'm the attorney other lawyers hire to defend them. July 15, Ronald Hedding. Previous Post.
Next Post. However, in Padilla v. Janis, U. Pahkala, N. See generally, Marjorie A. Nigro, Jr. Ohio, U. In companion cases, Camara v. Municipal Court, U. City of Seattle , U. The Court limited this general rule in Colonnade Catering Corp v. United States, U. Section 8 of the Human Rights Act provides a right for defendants to claim damages for police breaches of the law or of rules which breach their Convention rights.
A non-practising solicitor, Nicola is also a fully qualified journalist. For the past 20 years, she has worked as a legal journalist, editor and author. What constitutes illegally or improperly obtained evidence? Is all evidence admissible? Real and confessional evidence The fairness of a trial could be endangered by the admission of unreliable evidence. When will evidence obtained illegally or improperly be excluded?
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