The United Nations Mechanism on Syria: Will the Syrian Crimes Evidence be Admissible in European Courts?
This Note explores potential admissibility challenges that may arise when European courts use evidence of Syrian crimes collected by the newly-established International, Impartial and Independent Mechanism for Syria (“the IIIM”). The Note examines the evidentiary rules of four European countries—France, Germany, the Netherlands, and Sweden––where Syrian cases are currently being investigated or prosecuted. Specifically, it focuses on evidence that was improperly or illegally obtained, including evidence procured by private actors. This Note also looks at the European Convention on Human Rights (“ECHR”) Article 8 and relevant case law from the European Court of Human Rights concerning illegal searches and seizures. Finally, this Note highlights the importance of avoiding admissibility issues that may arise as a result of the IIIM’s close cooperation with both private groups who gather the evidence on the ground and the European authorities that will ultimately be using such evidence in court.
Table of Contents Show
Introduction
It has been eight years since the beginning of the Syrian war, which has left at least 400,000 people dead and over half of the population displaced.
The IIIM, however, will likely encounter a number of challenges in fulfilling its mandate because it was created by a General Assembly resolution. One challenge stems from the fact that without the Security Council’s authorization under the United Nations Chapter VII mandate,
The IIIM is also facing another major challenge. Since the Security Council is unlikely to refer the Syrian conflict to the ICC or create a special tribunal, domestic courts in European countries operating under the doctrine of universal jurisdiction will be the only courts that will utilize the evidence gathered by the IIIM in the immediate future. In fact, there have already been a number of Syrian cases investigated or prosecuted by domestic authorities in Austria, France, Finland, Germany, Norway, the Netherlands, Spain, Sweden, and Switzerland.
Part I presents a brief overview of the IIIM’s structure and mandate, and discusses why the IIIM will inevitably have to rely on evidence collected by non-governmental actors to fulfill its mandate. It also explains how the methods used by some of these actors might create admissibility issues in courts. Part II provides an overview of the publicly-disclosed Syrian investigations and prosecutions taking place in multiple European jurisdictions, and explains why those jurisdictions’ cooperation with the IIIM is essential.
Part III examines evidentiary rules and laws in four European countries––France, Germany, the Netherlands, and Sweden––where Syrian cases are currently being investigated or prosecuted, and how those laws might apply to improperly or illegally obtained evidence, especially evidence collected by private actors. It also considers how European prosecutions might be impacted by Article 8 of the ECHR, which guarantees a right to privacy, and related European Court of Human Rights jurisprudence on illegal searches and seizures.
Part IV highlights the risk that critical Syrian evidence collected by private actors using improper or illegal collection methods could be excluded from European domestic prosecutions if the private actors’ actions are imputed to the public authorities they work closely with. The IIIM and European authorities should consider limiting the scope of their cooperation with each other and private actors to ensure that some of their most valuable sources of evidence can be used to bring justice to Syria.
Part I: The IIIM and Evidence Collected by Non-State Actors in Syria
In 2016, frustrated by the lack of action in response to the crimes in Syria, Liechtenstein and Qatar introduced a General Assembly resolution establishing the International, Impartial and Independent Mechanism for Syria under the auspices of the United Nations (“UN”).
The IIIM has begun its preliminary work in Geneva, led by Catherine Marchi-Uhel, a retired French judge who also served at the UN Interim Administration Mission in Kosovo, the Extraordinary Chambers in the Courts of Cambodia, and the International Tribunal for the former Yugoslavia.
According to the IIIM’s Terms of Reference (“TORs”), its mandate consists of collecting, consolidating, and analyzing the evidence of international crimes and human rights violations committed in Syria, and preparing files to facilitate and expedite criminal proceedings in national, regional, and international courts or tribunals that have or may have jurisdiction over these crimes.
The TORs put a special emphasis on the fact that the IIIM will primarily rely on information collected by others, including other UN bodies, Syrian and international civil society actors, NGOs, international and regional organizations, and individuals.
It is not surprising that the IIIM’s TORs pay special attention to linkage evidence. Linkage evidence is especially important in international criminal cases where there is a need to connect crimes—such as mass killings, rapes, or torture––ordinarily committed by lower-level fighters to the higher-level military and political leaders responsible for planning and ordering those atrocities.
One such group is the Commission for International Justice and Accountability (“CIJA”), a private investigative organization headed by former international investigators and prosecutors
While documents collected by CIJA and other private individuals and organizations operating in a similar fashion can greatly assist the IIIM with its mandate to establish the connection between crime-based evidence and the persons responsible,
Therefore, there is an apparent conflict between the IIIM’s inevitable reliance on private third parties, such as CIJA, to collect evidence and the danger that this evidence will not be admitted in courts that try Syrian cases. This conflict will be explored further in Parts III and IV. In order to understand the risk that illegally or improperly obtained IIIM evidence may face, it is necessary to understand what domestic and international standards bind European courts’ decisions about excluding such evidence.
Part II: European Courts’ Role in Prosecuting Syrian Crimes
Despite the absence of prosecutions on the international level, at least nine European countries have initiated investigations and, in some cases, prosecuted crimes committed in Syria. The principle of universal jurisdiction governs many of these investigations and prosecutions, allowing national prosecutors to pursue individuals suspected of committing certain grave international crimes, even though the crimes occurred outside the prosecuting country’s territory and neither the accused nor the victims are nationals of that country.
Based on news reports, since 2015, Austria, France, Norway, the Netherlands, Spain, and Switzerland have been investigating dozens of individuals for possible war crimes committed in Syria. Many of these individuals came to those countries as refugees or asylum seekers.
While these examples of investigations and prosecutions in some European countries are positive developments, overall they are not representative of the crimes committed in Syria.
Part III: Exclusionary Evidence Rules in European Courts
IIIM evidence gathered by third parties only serves the UN’s goal of bringing justice and accountability for Syrian crimes if it is admissible in court. Exclusion of improperly obtained evidence at trial is a feature generally associated with the American judicial system. In the United States, the so-called exclusionary rule is a judicially-created remedy designed to deter the government from violating individuals’ Fourth Amendment right to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
The United States is not unique in using the exclusionary rule. At least fifteen other countries, with both common law and civil law systems, also bar the use of improperly obtained evidence in court.
In Parts III.A and III.B, I examine the rules for exclusion of improperly or illegally obtained evidence in four countries—France, Germany, the Netherlands, and Sweden—as well as decisions of the European Court of Human Rights. Part III.C explores the potential impact of European domestic laws on the admissibility of evidence collected from Syria and compiled by the IIIM.
A. National Jurisdictions
Improperly or illegally obtained evidence is likely admissible in several European jurisdictions investigating or prosecuting Syrian cases. All four jurisdictions examined in this Note—France, Germany, the Netherlands, and Sweden—provide judges with significant discretion to consider all kinds of evidence. Even in jurisdictions where restrictions exist on the use of evidence obtained in violation of defendants’ rights, these restrictions do not apply to evidence obtained by private actors.
1. France
French law is generally governed by the principle of “free evaluation of evidence” in criminal matters.
Nevertheless, these provisions and principles do not apply to evidence obtained by non-state or private parties.
2. Germany
In Germany, where finding the truth is the leading principle of the criminal process, judges are generally not bound by any rules or guidelines when deciding on admissibility of potentially relevant evidence.
Case law maps out other prohibitions on the use of improperly obtained evidence.
3. The Netherlands
In the Netherlands, judges may exclude evidence that was improperly or irregularly obtained during the pretrial investigative stage.
Furthermore, in the Netherlands, Article 8 of the ECHR, which forbids improper interference with a person’s privacy by public authorities,
4. Sweden
The principle of free admission and free evaluation of evidence governs Swedish criminal law, which in theory means that even illegally obtained evidence can be admitted in court.
Even though the Swedish judicial system does not have a strong exclusionary rule, court decisions based on problematic evidence may nevertheless be invalidated when such evidence violates the ECHR. Though the Swedish Supreme Court previously admitted illegally obtained evidence despite the ECHR’s Article 6 guarantee of the right to a fair trial, it ultimately decided that a violation of a fundamental right guaranteed by the Convention required that the accused be acquitted.
Based on these examples, improperly obtained evidence obtained by private parties like CIJA and collected by the IIIM may be admissible under the laws of some European jurisdictions. In France, Germany, the Netherlands, and Sweden, judges have broad discretion to consider all kinds of evidence, regardless of how it was obtained. And while countries like France or the Netherlands put some constraints on the use of certain evidence obtained in violation of defendants’ basic rights, these restrictions do not apply to evidence obtained by purely private actors. However, such evidence might still be excluded when it is obtained in violation of the ECHR.
B. The European Court of Human Rights
Even if the laws of European countries do not exclude improperly obtained evidence, domestic courts may nevertheless decline to admit such evidence or invalidate convictions based on its use if such evidence was obtained using methods that violates the ECHR.
Pursuant to Article 8, public authorities cannot interfere with people’s right to private and family life, their home, and their correspondence unless such interference is done in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country; for the prevention of disorder or crime; or for the protection of health, morals, or the rights and freedoms of others.
First, the court decides whether there was an actual interference.
Once the court finds that a domestic law or judicial decision is in violation of any of the Articles of the ECHR, the court then can order the relevant state to pay compensation to the injured party and to reopen the domestic proceeding in accordance with the court’s decision.
In several cases, the court has been asked to rule whether interference by private parties acting in cooperation with state authorities violates Article 8. For example, in A. v. France, the court held that a police superintendent violated Article 8 by allowing a private party to make a phone call from police headquarters and recording the receiver’s incriminating statement.
Similarly, in M.M. v. Netherlands, the court held that the police violated Article 8 of the ECHR when it installed a device on a victim’s phone to record incriminating conversations.
Most recently, in Bykov v. Russia, the court similarly found a violation of Article 8 when a private individual used a hidden radio-transmitting device to record and transmit a conversation between the applicant and the police.
Based on the examples above, evidence obtained by private parties in violation of an individual’s rights might be admissible in certain jurisdictions where the exclusionary rule either does not exist or does not apply to violations committed by private parties. However, such evidence cannot be obtained with significant involvement by state authorities; this would be contrary to the ECHR. Moreover, even in cases where a government’s warrantless interference with a person’s privacy might be considered justifiable under domestic laws, it must still be done in accordance with the general rule of law under Article 8 of the ECHR.
C. The Potential Impact of European Laws on Evidence Collected by the IIIM
As seen from the domestic European jurisdictions’ laws, as well as the European Court of Human Rights case law, evidence obtained by third parties in violation of suspects’ rights to privacy can be admitted and successfully used in a number of European states as long as it is obtained by purely private parties. In addition, even if such evidence is obtained by state authorities, it may still be admitted in some jurisdictions, like Sweden or Germany, which either have no exclusionary rules or allow judges broad discretion in admitting evidence. However, interference with an individual’s right in such cases still must be in accordance with the rule of law, pursue one of the legitimate aims listed in paragraph (2) of Article 8 of the ECHR, and be “necessary in a democratic society” to achieve those aims.
The admissibility of evidence obtained by private actors, such as CIJA, and submitted to the IIIM will largely depend on how courts view the cooperation between the private actors and the IIIM, and the cooperation between the IIIM and the domestic criminal justice authorities. It is possible that because such organizations and individuals have been gathering evidence on their own initiative––even before the IIIM’s establishment or the commencement of criminal investigations in European jurisdictions––European courts or the European Court of Human Rights may decide that such evidence is the product of a purely private action. However, if, like in A. v. France or M.M. v. Netherlands, the courts find that the state authorities were substantially involved in obtaining such evidence––for example by providing instructions or technical assistance––the courts may rule such evidence to be a product of state action. It, therefore, may exclude the evidence or invalidate convictions based on such evidence if it is improperly or illegally obtained. To avoid this result, the IIIM should carefully consider the nature of its relationship with both the private investigative groups and the state authorities that it is working with. The IIIM must also pay special attention to how much guidance and what types of assistance it provides to or receives from such actors.
Similarly, the domestic authorities investigating Syrian cases should take caution in the future to ensure that their cooperation with the IIIM is not attributed to state action. They need to avoid accidentally deputizing the IIIM or the private groups that are supplying the IIIM with evidence from Syria. For example, the domestic authorities and the IIIM should probably avoid telling such groups exactly what evidence to get and how to get it. Alternatively, if they do provide such specific directives, domestic authorities might also look carefully into existing laws governing evidence collection and the European Court of Human Rights’ Article 8 jurisprudence to see whether they can make a valid argument that even warrantless collection of evidence might still be justifiable under the Article 8 of the ECHR. Thus, if European prosecutors can demonstrate the existence of other safeguards in their laws protecting the rights of the defendant, they can still potentially argue that even warrantless evidence was obtained in accordance with the general rule of law, as Article 8 requires. Thus, that evidence will be admissible in court.
Conclusion
It is possible that European courts hearing Syrian criminal cases might decide that even warrantless interference with the suspects’ privacy rights might nevertheless be justifiable because of the ongoing conflict and the collapse of the rule of law in Syria. However, the IIIM and the domestic authorities investigating and prosecuting Syrian cases would be wise to steel themselves against all potential challenges. Successful admissibility of the evidence collected by the IIIM will determine not only the legitimacy of the IIIM model, but the UN’s ability to deliver justice to the victims of the Syrian conflict and hold all perpetrators accountable.
DOI: https://doi.org/10.15779/Z38Z31NP4G.
Copyright © 2019 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications.
The author thanks Keith Hiatt for his mentorship and help with the development of this Note’s research question, as well as Charles Weisselberg, Alexa Koenig, Beth Van Schaak, Melena Krause, and Anne Schroeter for their valuable comments and suggestions.
- About OCHA Syria, U.N. Off. for the Coordination of Humanitarian Aff., http://www.unocha.org/syrian-arab-republic/about-ocha-syria [https://perma.cc/XZK5-8QQV]; Anne Barnard, Death Toll from War in Syria Now 470,000, Group Finds, N.Y. Times (Feb. 11, 2016), https://www.nytimes.com/2016/02/12/world/middleeast/death-toll-from-war-in-syria-now-470000-group-finds.html [https://perma.cc/L2AQ-TU8C]. ↑
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- G.A. Res. 71/248 (Jan. 11, 2017); General Assembly Takes Action on Second Committee Reports by Adopting 37 Texts, U.N. Meetings Coverage and Press Releases (Dec. 21, 2016), https://www.un.org/press/en/2016/ga11880.doc.htm [https://perma.cc/R639-S4QX] [hereinafter U.N. Meetings Coverage]. ↑
- G.A. Res. 71/248, supra note 3. ↑
- U.N. Meetings Coverage, supra note 3. ↑
- Chapter VII of the United Nations Charter provides the framework within which the United Nations, through the Security Council, may take enforcement action binding on all Member States. U.N. Charter arts. 39–51. ↑
- Agence France-Presse, Dutch Find 30 Suspected War Criminals Among Last Year’s Refugee Wave, The Guardian (Feb. 29, 2016), https://www.theguardian.com/world/2016/feb/29/refugees-europe-dutch-war-criminals-migration [https://perma.cc/W6M6-PB4D] [hereinafter Dutch Find 30 Suspects]; Paul Day, Spain Court Drops Complaint Against Syrian Security Forces, Reuters (July 21, 2017), https://www.reuters.com/article/us-mideast-crisis-syria-spain/spain-court-drops-complaint-against-syrian-security-forces-idUSKBN1A61J1 [https://perma.cc/CP3D-AE6L]; Laurence Frost, France Investigates Syria’s Assad for Crimes Against Humanity, Reuters (Sept. 30, 2015), https://www.reuters.com/article/us-france-syria-assad/france-investigates-syrias-assad-for-crimes-against-humanity-idUSKCN0RU11320150930 [https://perma.cc/3SPK-6Y63]; Human Rights Watch , Justice for Syria in Swedish and German Courts, 67–74 (2017), https://www.hrw.org/sites/default/files/report_pdf/ijsyria1017_web.pdf [https://perma.cc/T595-MCPU]; Stine Jacobsen, Norway Police Search for Syrian War Criminals Among Asylum Seekers, Reuters (Jan. 15, 2016), https://uk.reuters.com/article/uk-europe-migrants-warcrimes-norway/norway-police-search-for-syrian-war-criminals-among-asylum-seekers-idUKKCN0UT1FG [https://perma.cc/SB9E-PSW2]; Martin Scheinin, Is Travel to Syrian Warfare a Terrorist Crime? The Finnish Case, Verfassungsblog on Matters Constitutional (May 8, 2018) https://verfassungsblog.de/is-travel-to-syrian-warfare-a-terrorist-crime-the-finnish-case [https://perma.cc/8VDW-RNXD]; Schweizer Justiz Ermittelt Wegen Kriegsverbrechen in Syrien [Swiss Justice Investigates War Crimes in Syria], Tages Anzeiger (Oct. 2, 2016, 15:32), https://www.tagesanzeiger.ch/schweiz/standard/schweizer-justiz-ermittelt-wegen-kriegsverbrechen-in-syrien/story/21007826 [https://perma.cc/U294-2LGR] [hereinafter Swiss Justice]; Three Finns Charged with Plotting Terrorist Activities in Syria, Yle Uutiset (Oct. 18, 2017), https://yle.fi/uutiset/osasto/news/three_finns_charged_with_plotting_terrorist_activities_in_syria/9889930 [https://perma.cc/M3LL-7VSH] [hereinafter Three Finns Charged]. ↑
- Ben Taub, The Assad Files, The New Yorker (Apr. 18, 2016), https://www.newyorker.com/magazine/2016/04/18/bashar-al-assads-war-crimes-exposed [https://perma.cc/JNK8-LNZH]. ↑
- G.A. Res. 71/248, supra note 3; U.N. Meetings Coverage, supra note 3. ↑
- U.N. Meetings Coverage, supra note 3. ↑
- Secretary-General Appoints Catherine Marchi-Uhel of France to Head International Impartial and Independent Mechanism Investigating Serious Crimes in Syria, U.N. Meeting Coverage and Press Releases (July 3, 2017), https://www.un.org/press/en/2017/sga1744.doc.htm [https://perma.cc/GN3J-HTPQ]. ↑
- U.N. Secretary-General, Implementation of the Resolution Establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic Since March 2011, Annex, ¶ 32, U.N. Doc. A/71/755 (Jan. 19, 2017) [hereinafter Implementation of the IIIM Resolution]; U.N. Secretary-General, Report of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic Since March 2011, ¶ 31, Doc No. A/72/764 (Feb. 28, 2018). ↑
- Implementation of the IIIM Resolution, supra note 12, at ¶ 51. ↑
- Id. at Annex, ¶ 3. ↑
- Id. at Annex, ¶ 4. ↑
- Id. at Annex, ¶¶ 5–9. However, if appropriate, the IIIM shall also collect additional evidence on its own. Id. at Annex, ¶ 5. ↑
- Id. at Annex, ¶ 6. ↑
- See Nancy Amoury Combs, Grave Crimes and Weak Evidence: A Fact-Finding Evolution in International Criminal Law, 58 Harv. Int’l L.J. 47, 57 (2017)”https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2905&context=facpubs” https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2905&context=f. ↑
- See Nancy Amoury Combs, Grave Crimes and Weak Evidence: A Fact-Finding Evolution in International Criminal Law, 58 Harv. Int’l L.J. 47, 57 (2017)https://scholarship.law.wm.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2905&context=facpubs; Jennifer Stanley, From Nuremberg to Kenya: Compiling the Evidence for International Criminal Prosecutions, 49 Vand. J. Transnat’l L. 819, 819–20, 822–23 (2016). ↑
- See Stanley, supra note 19, at 823. ↑
- See, e.g., Responding to Misconceptions Regarding the IIIM, Syria Justice & Accountability Centre (Aug. 2, 2017), https://syriaaccountability.org/updates/2017/08/02/responding-to-misconceptions-regarding-the-iiim [https://perma.cc/FL7X-AYKK]; Cristina Roca, Long Read: How the Syrian War Changed How War Crimes Are Documented, News Deeply (June 1, 2017), https://www.newsdeeply.com/syria/articles/2017/06/01/long-read-how-the-syrian-war-changed-how-war-crimes-are-documented [https://perma.cc/SS68-PQLR]; Salvaging Online Videos As Proof of War Crimes in Syria, The Observers (Feb. 2, 2018), http://observers.france24.com/en/20180202-videos-proof-war-syria-syrian-archive [https://perma.cc/248T-DMSG]. ↑
- Taub, supra note 8. ↑
- Id.; Julian Borger, Syria’s Truth Smugglers, The Guardian (May 12, 2015), https://www.theguardian.com/world/2015/may/12/syria-truth-smugglers-bashar-al-assad-war-crimes [https://perma.cc/G3N5-5HYF]. ↑
- Taub, supra note 8. ↑
- Id. ↑
- Id.; Bill Wiley, Exec. Dir., Comm’n for Internat’l Justice & Accountability, Panel Event: “Can Another Hague-Based International Court (The ICJ) Contribute to Accountability in Syria? at Fourteenth Session of the Assembly of State Parties—ICC, Pub. Internat’l L. & Pol’y Group (Nov. 23, 2015). ↑
- Taub, supra note 8. ↑
- Wiley, supra note 26. ↑
- Implementation of the IIIM Resolution, supra note 12, at Annex, ¶ 6. ↑
- See, e.g., Mapp v. Ohio, 367 U.S. 643 (1961); Lorena Bachmaier, Spain, in 1 Toward a Prosecutor for the European Union: A Comparative Analysis 702, 709–10 (Katalin Ligeti ed., 2013); Juliette Tricot, France, in 1 Toward a Prosecutor for the European Union: A Comparative Analysis, supra, at 222, 253–54; Thomas Weigend, Germany, in 1 Toward a Prosecutor for the European Union: A Comparative Analysis, supra, at 264, 295–96. ↑
- The Convention for the Protection of Human Rights and Fundamental Freedoms, art. 8, C.E.T.S. No. 194 (Nov. 4, 1950) [hereinafter The European Convention on Human Rights]. ↑
- International Committee of the Red Cross, Universal Jurisdiction Over War Crimes (2014), https://www.icrc.org/eng/assets/files/2014/universal-jurisdiction-icrc-eng.pdf [https://perma.cc/8WDN-UT8L]; Human Rights Watch, supra note 7, at 1. ↑
- Human Rights Watch, supra note 7, at 34, 68–69, 71, 73. ↑
- Id. at 71; Three Finns Charged, supra note 7. ↑
- Day, supra note 7; Dutch Find 30 Suspects, supra note 7; Frost, supra note 7; Jacobsen, supra note 7; Swiss Justice, supra note 7. ↑
- Our Foreign Staff, France Targets Three Top Syrian Security Chiefs with International Arrest Warrants, The Telegraph (Nov. 5, 2018), https://www.telegraph.co.uk/news/2018/11/05/france-targets-three-top-syrian-security-chiefs-international [https://perma.cc/V6JR-RYM4]. ↑
- Human Rights Watch, supra note 7, at 74. ↑
- Id. at 73–74. ↑
- Jörg Diehl et al., Germany Takes Aim at Assad’s Torture Boss, Spiegel Online (June 8, 2018), http://www.spiegel.de/international/world/senior-assad-aid-charged-with-war-crimes-a-1211923.html [https://perma.cc/3Z3E-HXR2]. ↑
- Kate Connolly & Owen Bowcott, Austrian Court Jails Asylum Seeker for War Crimes in Syria, The Guardian (May 11, 2017), https://www.theguardian.com/world/2017/may/11/austria-jails-syrian-man-who-boasted-of-killings-in-homeland [https://perma.cc/VZN9-WUJW]; Human Rights Watch, supra note 7, at 69–70; Three Finns Charged, supra note 7. ↑
- Human Rights Watch, supra note 7, at 74. ↑
- See, e.g., Amnesty International, Amnesty International Report 2016/2017: The State of the World’s Human Rights, 349–51 (2017), https://www.amnesty.org/en/documents/pol10/4800/2017/en/ [https://perma.cc/B5FZ-8UFN]; Human Rights Watch, World Report 2017: Events of 2016, 571–74 (2017), https://www.hrw.org/sites/default/files/world_report_download/wr2017-web.pdf [https://perma.cc/FWW9-YM7L]. ↑
- Human Rights Watch, supra note 7, at 4, 36. ↑
- Id. at 2, 4. ↑
- See U.S. Const. amend. IV; Mapp v. Ohio, 367 U.S. 643, 651 (1961). ↑
- Mapp, 367 U.S. at 660. Since Mapp, the exclusionary rule has become more relaxed. See, e.g., United States v. Leon, 468 U.S. 897 (1984)). ↑
- See United States v. Jacobsen, 466 U.S. 109, 113 (1984). ↑
- Skinner v. Ry. Labor Exec.’s’ Ass’n, 489 U.S. 602, 614 (1989). ↑
- The countries that have these exclusionary rules are Belgium, Canada, England, France, Germany, Greece, Israel, Italy, New Zealand, Scotland, Serbia, Spain, Taiwan, the Netherlands, and Turkey. See, e.g., 20 Exclusionary Rules in Comparative Law, Ius Gentium: Comparative Perspectives on Law and Justice (Stephen C. Thaman, ed., 2013); Michael Davies, Alternative Approaches to the Exclusion of Evidence Under S. 24(2) of the Charter, 46 Crim. L.Q. 21 (2002). ↑
- Christoffer Wong, Sweden, in 1 Toward a Prosecutor for the European Union: A Comparative Analysis, supra note 30, at 743, 772–73. ↑
- 51. See infra Part III.A.1–4. ↑
- Since this Note concerns evidence obtained in Syria, another question arises as to whether courts in European jurisdictions that investigate or prosecute Syrian cases would apply domestic or Syrian evidence laws. The answer depends on the specific country and the circumstances of the case. In France, for example, French laws usually apply to evidence obtained in foreign legal systems unless an international convention or binding treaty applies. Tricot, supra note 30, at 255. In Germany, however, courts tend to admit evidence collected abroad in accordance with that country’s procedures, as long as the procedures do not violate the basic rules of German procedure law. Weigend, supra note 30, at 298. Further research is needed to explore this question more closely. ↑
- Richard Vogler, France, in Criminal Procedure in Europe 171, 190 (Richard Vogler & Barbara Huber eds., 2008). ↑
- Code de procédure pénale. [C. pr. pén.] [Criminal Procedure Code] art. 427 (Fr.). ↑
- Tricot, supra note 30, at 253–54. ↑
- Andrea Ryan, Towards a System of European Criminal Justice: The Problem of Admissibility of Evidence 155 (2014). ↑
- Id.; Tricot, supra note 30, at 253–54. ↑
- Ryan, supra note 56, at 156. The Court of Cassation is France’s court of last resort. Like the US Supreme Court, its purpose is to state the law rather than make factual determinations in cases from the lower courts, and to harmonize the law across the French Republic. About the Court, cour de cassation, https://www.courdecassation.fr/about_the_court_9256.html [https://perma.cc/NA5P-4HD7]. ↑
- Ryan, supra note 56, at 156; Tricot, supra note 30, at 253–54. ↑
- Tricot, supra note 30, at 254. ↑
- Barbara Huber, Germany, in Criminal Procedure in Europe, supra note 53, at 269, 292; Weigend, supra note 30, at 295. ↑
- Weigend, supra note 30, at 295. ↑
- Nigel Foster & Satish Sule, German Legal System and Laws 358 (3rd ed. 2002); see also Huber, supra note 61, at 292; Weigend, supra note 30, at 296. The German Federal Constitutional Court has developed three spheres of privacy: the social sphere (like business contacts), which is generally admissible; the private sphere (such as private talks in public spaces), which can be admissible, but must be balanced against other interests at stake; and the intimate sphere (such as bedroom conversations between spouses), which is not admissible. Foster, supra, at 358. ↑
- Foster, supra note 63, at 357; Weigend, supra note 30, at 296. ↑
- Weigend, supra note 30, at 296. ↑
- Id. ↑
- Id. ↑
- E.U. Network of Independent Experts on Fundamental Rights, Opinion on the Status of Illegally Obtained Evidence in Criminal Procedures in the Member States of the European Union 16 (2003), https://sites.uclouvain.be/cridho/documents/Avis.CFR-CDF/Avis2003/CFR-CDF.opinion3-2003.pdf [https://perma.cc/FFY6-RVCE] [hereinafter E.U. Network]. ↑
- Idlir Peci, The Netherlands, in 1 Toward a Prosecutor for the European Union: A Comparative Analysis, supra note 30, at 95, 121. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- See infra Part III.B. ↑
- E.U. Network, supra note 68, at 21. ↑
- Id. at 22. ↑
- Id. ↑
- Wong, supra note 50, at 771. ↑
- E.U. Network, supra note 68, at 24. ↑
- Id. ↑
- Id. ↑
- Wong, supra note 50, at 772. ↑
- Id. at 772 n.146. ↑
- The European Convention on Human Rights is an international treaty that protects human rights and fundamental freedoms of individuals under the jurisdiction of the Council of Europe countries, regardless of such individuals’ nationality. Austria v. Italy, App. No. 788/60, Y.B. Eur. Conv. on H.R. 116, 140 (1961). ↑
- The European Convention on Human Rights, supra note 31, at art. 8. ↑
- See A. v. France, 277 Eur. Ct. H.R. (ser. A) 38, 48–49 (1993). ↑
- See id. at 49; E.U. Network, supra note 68, at 8. ↑
- See Akhlyustin v. Russia, App. No. 21200/05, 333 Eur. Ct. H.R. ¶ 37 (2017); Société Colas Est and Others v. France, III Eur. Ct. H.R. 133, 148–49 (2002); Niemietz v. Germany, 251 Eur. Ct. H.R. (ser. A) 25, 34 (1992). ↑
- See Akhlyustin, 333 Eur. Ct. H.R., at ¶¶ 40–47; A., 277 Eur. Ct. H.R. at 49–50. ↑
- See A., 277 Eur. Ct. H.R. at 49. ↑
- See Akhlyustin, 333 Eur. Ct. H.R. at ¶ 40. ↑
- See M.M. v. Netherlands, App. No. 39339/98, Eur. Ct. H.R. ¶¶ 45–46 (2003); A., 277 Eur. Ct. H.R. at 49–50 at 49–50. ↑
- Bykov v. Russia, App. No. 4378/02, Eur. Ct. H.R. ¶ 76 (2009). ↑
- Council of Bars and Law Societies of Europe, The European Court of Human Rights: Questions & Answers for Lawyers, Question 38, (2014), https://www.echr.coe.int/Documents/Guide_ECHR_lawyers_ENG.pdf [https://perma.cc/2VAY-W3LU]. ↑
- Id. ↑
- A., 277 Eur. Ct. H.R. at 40, 50. ↑
- Id. at 40. ↑
- Id. at 49. ↑
- Id. at 49–50. ↑
- Id. at 50. ↑
- M.M. v. Netherlands, App. No. 39339/98, Eur. Ct. H.R. ¶¶ 9–14, 46 (2003). ↑
- Id. at ¶ 11. ↑
- Id. at ¶¶ 9–14. ↑
- Id. at ¶ 35. ↑
- Id. at ¶¶ 37, 39. ↑
- Id. at ¶¶ 38–39, 44–46. ↑
- Bykov v. Russia, App. No. 4378/02, Eur. Ct. H.R. ¶¶ 13, 83 (2009). ↑
- Id. at ¶ 10. ↑
- Id. at ¶ 14. ↑
- Id. at ¶¶ 14, 29–48. ↑
- Id. at ¶¶ 72–75. ↑
- Id. at ¶¶ 77–83. ↑
- Id. at ¶ 83. ↑
- European Convention on Human Rights, supra note 31, at art. 8. ↑