NEZAKONITI DOKAZI: TEORIJSKE I PRAKTICNE DVOJBE U SVJETLU PRAKSE EUROPSKOG SUDA ZA LJUDSKA PRAVA

In its introductory part, the paper presents some basic theoretical content related to the types, origins and purpose of the exclusion of evidence. Then comes a presentation of the various types of exclusion of evidence in the German theory of criminal procedure, legislation and case law. In the central part of the paper, the authors discuss evidence whose presentation leads to a violation of the right to a fair trial prescribed by Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In relation to this, they analyse when the use of evidence obtained by a violation of Article 3 of the Convention leads to an assessment by the ECtHR on the existence of a violation of the right to a fair trial, and when this assessment is the result of reviewing the fairness of the procedure in its entirety. A special section deals with cases of violation of Article 6 of the Convention by incitement to a criminal offence and by applying "special investigative techniques". This is followed by an analysis of the mechanisms of enforcing judgments of the ECtHR, which is particularly relevant in the context of illegally obtained evidence due to the possibility of renewing criminal proceedings. The final part of the paper discusses illegally obtained evidence from the perspective of the Criminal Procedure Act, also paying particular attention to the recent case law. Separate sections consider the procedural consequences of using illegally obtained evidence and particular categories of illegally obtained evidence pursuant to Article 10.2, followed by a discussion on weighing the interests of criminal prosecution against the violation of the law provided for in Article 10.3 of the Criminal Procedure Act. De lege ferenda proposals are given in the conclusion.