'The Bigger the Crime, the Smaller the Chance of a Fair Trial? Evidence Exclusion in Serious Crime Cases Under Swiss, Dutch and European Human Rights Law'

This article discusses evidence exclusion under Swiss, Dutch and the ECtHR’s case law. It is shown that different national rules can still lead to similar outcomes. This can be explained by the influence of the ECtHR’s case law and by common normative underpinnings of evidence law. In all systems there are cases of strict exclusion of evidence (e.g., torture). If evidence cannot be strictly excluded courts apply a balancing approach. They consider among other factors the seriousness of the crime. Illegally obtained evidence can thus be used, if a serious crime is at stake. It is argued that this seriousness-argument not only fails to serve the objectives of evidence exclusion (deterrence, protection of rights etc.), but for the defendant it means that the bigger the crime he is accused of the smaller becomes his chance of a fair trial. Lees verder:

 

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