Academic literature on the topic 'Unlawfully obtained evidence'

Abstract 70 years ago, the International Court of Justice decided its first and potentially most important case involving unlawfully obtained evidence. Despite clearly rejecting ‘discovery by intervention’, the judgment left many guessing as to the consequences for evidence obtained through such violations. As parties to international disputes have certainly not become less inclined to obtain evidence by unlawful means, the question arises: Was this old confusion ever unraveled? This article discusses whether today, there are international rules or principles governing the admissibility of unlawfully acquired evidence and applies a two-fold approach. First, it examines traditional sources of international law, including international jurisprudence, and second, it scrutinizes the frequently drawn analogy to national jurisdictions by surveying their treatment of illegally obtained evidence. Although a generally binding “inadmissibility rule” does not yet exist, practice demonstrates a tendency to consider such evidence in light of general principles of law. This article proposes handling unlawfully acquired evidence by applying a defined, yet flexible balancing test using criteria commonly applied in international and national practice.

The public policy discretion at common law in Australia was established in the High Court case of Bunning v Cross. The discretion has subsequently been interpreted and applied to permit courts to exclude evidence obtained by improper, unlawful or illegal conduct on the part of ‘the authorities’. The discretion has not been held to be enlivened for exercise in circumstances where the impugned conduct is on the part of private persons unconnected with law enforcement. This article argues that this fetter on the availability of the public policy discretion has been wrongly interpreted from the decision in Bunning and that, to the extent that the fetter now forms part of the common law discretion, it should be abandoned. The argument is made on the basis of the language, context, development and rationale of the public policy discretion as conceived in Bunning. The statutory Uniform Evidence Law, which applies in certain Australian jurisdictions, enacts a public policy discretion in s. 138 drawn from the common law public policy discretion. The Uniform Evidence Law is examined to indicate the absence of any fetter to the s. 138 discretion applying only to conduct by authorities as a basis for revising the understanding of the common law discretion. The comparable powers to exclude unlawfully obtained evidence in the United States and United Kingdom are examined to distinguish the rationale of the Australian discretion as requiring a broader scope of application. The internet is considered as a modern advent permitting previously unknown capacity for private persons to unlawfully police each other. Private criminal investigation through the internet is argued to be a further basis to mark the need for the extension of the Australian public policy discretion to all persons not only the authorities. The overarching thesis of this article is to demonstrate why the Australian common law public policy discretion should be enlivened by improper, unlawful or illegal conduct, regardless of the source of that conduct.

The admissibility of the use of evidence obtained unlawfully, referred to as the fruit of the poisonous tree, still remains an unresolved issue on the basis of Polish procedural law. The author in her paper will focus on such forms of evidence, which are more and more often the subject of evidentiary procedures, noting that this mainly concerns the content of private conversations conducted with the use of messengers and community portals, call recordings, and telephone billings, data obtained from mobile phones, or so-called print screens, which are often obtained in an illegal manner, interfering with the sphere of privacy of the other person.

This study looks at the principles that shape the structure of the whole of Thai criminal procedure law. It examines how the search for truth is attempted to be reconciled with the idea of a fair trial or procedural fairness. The conflict between the search for truth on the one hand and guaranteeing procedural rights of the accused on the other is particularly problematic in the Thai context. Thai law affirms that some evidence cannot be admissible if it is obtained by a violation of certain procedural norms. At the same time, the law allows judges to admit some unlawfully obtained evidence in the interest of justice. The conflict between various legal norms cannot be solved without permitting judges to exercise broad discretion in striking the right balance between discovering the true facts and protecting the rights of the accused. Thai legal education and practice does not allow a broad judicial discretion in accepting or rejecting evidence on the grounds that it was obtained unlawfully. As a result, there is an attempt to build a sophisticated system of rules to accommodate the interests of justice and fairness in different situations. This system, however, lacks clarity and consistency.

The constitutional duty of the Irish state ‘to defend and vindicate the personal rights of the citizen’ is the basis of a strict rule excluding unconstitutionally obtained evidence. Although English courts recognise a similar duty to ‘vindicate human rights and the rule of law’, their powers to exclude evidence or stay proceedings for abuse of process are extremely flexible and discretionary. In both jurisdictions, there has been particular controversy over the application of these powers to covert recordings that breach legal professional privilege. This paper argues that the duty to vindicate rights and the rule of law underpins both the exclusion of unlawfully obtained evidence and the punishment of offenders. It requires a balancing exercise, not between defendants' rights and an incommensurable public interest but, rather, between two aspects of the same constitutional duty of the courts.

Abstract International criminal tribunals (ict s) have found, almost consistently, that unlawfully and/or secretly obtained evidence is admissible. De facto, defendants in international criminal law (icl) enjoy no privacy-related procedural safeguards under either the applicable domestic law or international human rights law (ihrl). Privacy violations are not confined to those impairing defendants’ rights; they might result in premature acquittals or in misconducts vis-à-vis the victims, too. While this is practically unescapable a compromise due to the ‘high profile’ of the accused and the complexity, length, momentousness, and ‘political charge’ of these trials, over-relaxed admissibility rules become unsustainable as far as digital evidence is concerned, in that they add to the latter’s inherently low reliability and heavy cognitive impact. Facing this issue, it is legit to wonder whether artificial intelligence (ai) might mitigate privacy violations or render them no longer necessary, thus improving the fairness record of the International Criminal Court (icc) and other ict s.

Introduction. Economic expertise is defined as a procedural action that consists in conducting research and providing expert economist on issues, the solution of which requires special knowledge in accounting, finance, analysis, auditing. The obvious relevance of the problem, the incompleteness of theoretical developments in the field of economic expertise and the practical need for scientific substantiation of methods of its conduct, contributing to the identification of negative tendencies and the adoption of appropriate decisions for their elimination, led to the choice of the topic of proposed article. Methods. The following research methods are used in the scientific article: deduction and induction, synthesis and analysis, dialectical, historical and systematic approaches, specific methods. The information base of the scientific article is: legislative and regulatory acts, as well as articles in economic journals, monographs, scientific works of domestic and foreign scientists. Results. The main aspects, tasks, methods of economic expertise, the correct conclusion of the expert-economist on the basis of a certain study of the sources of information provided, as they are a necessary component in the formation of the evidence base of the investigated unlawful act are analyzed in the article. The main problems of theoretical and practical nature are highlighted, as well as the necessary ways of solving them, which are directed to the prospects of development and increase of efficiency of results of both the process of economic examination and the profession of economist, in particular. Discussion. The use of economic expertise as one of the sources of evidence, the detection of economic offenses, is unjustifiably one-sided and limited in nature. Insufficient development of the methodology of expert studies of the reliability of accounting and reporting information significantly narrows the scope of economic expertise, limiting it to meet the needs of judicial investigative bodies. All this leads to the search for alternative ways, identification and implementation of the necessary measures that would contribute to solving problematic issues in the field of forensic accounting. Keywords: economic expertise, expert economist, offense, evidence, methodology, sources of information, accounting.

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Conselho Nacional de Desenvolvimento Científico e Tecnológico
The scope of this study is to look into tax-related information from the moment it is seized to the moment it is used as evidence of fines and taxes levied. This study is justified due to the vulnerableness of the individual s fundamental right to privacy. The right to privacy, especially in terms of protection of financial and tax-related data, is protected by confidentiality provisions violated by amendments to the National Tax Code resulting from Supplementary Laws 104 and 105, both from January 10, 2001. Firstly, we will examine the Brazilian Revenue Service and the myriad of tools it has available to inspect the lives and activities of individuals and legal entities, from the right of scrutinizing accounting books, merchandise, files, and documents, to the right of imposing the duty to provide information on the taxpayer to financial institutions and the like. There is an undeniable tension between the forms of information gathering and the protection of confidential data. Among the kinds of confidentiality related to our topic, financial data confidentiality stands out. According to prevailing case law and scholarly opinions, financial data confidentiality can be moderated as a result of a court order. However, contrariwise, Supplementary Law 105/01 has authorized data to be directly turned over to the Revenue Service. This is a clear non-conformity with the current Brazilian constitutional system. Provided constitutional provisions are taken into account, tax-related information are undeniably subject to being transferred to the tax authorities, which, in turn, have the duty of keeping them from third parties due to the confidentiality clause. This second kind of data confidentiality protection ensures the same right to privacy by preventing said information from being disclosed to third parties. This provision was made more elastic by Supplementary Law 104/01. Likewise and for the same reasons as financial confidentiality, only a court order can break through the confidential nature of tax-related information. Tax-related data, provided they are lawfully obtained, can be employed by the tax authorities in order to produce evidence of taxes and fines levied, and issue deficiency notices. The evidence submitted by the Revenue Service shall be admitted as long as it respects the applicable constitutional and legal provisions, especially provisions related to individual rights and freedoms. We understand, differently from the current and prevailing literature, which seems to passively accept the full disclosure of tax-related information on taxpayers and third parties based on the recent Supplementary Laws , that although tax inspection fulfills the administration s revenue needs, its limits are drawn by constitutional provisions, which no other kind of legislation has the power to disregard
Este trabalho tem como escopo a análise das informações fiscais, do momento de sua apreensão à sua utilização, sobremodo como provas a lastrear a exigência de tributos e multas. Justifica-se a reflexão em razão da vulneração ao direito fundamental à privacidade dos cidadãos, tutelado por normas de sigilo de dados, em especial os sigilos financeiro e fiscal, por força das substanciais alterações ao texto do Código Tributário Nacional oriundas do advento das Leis Complementares nº 104 e 105, ambas de 10 de janeiro de 2001. Parte-se do exame da Administração Tributária e do vasto instrumental à sua disposição para fiscalizar as atividades desenvolvidas pelos particulares, desde o direito de examinar livros, mercadorias, arquivos e documentos dos sujeitos passivos, à imposição de deveres de informar a contribuintes e terceiros, como instituições financeiras e entes assemelhados. Observa-se uma inegável tensão entre essas formas de coleta de informações e o sigilo de dados. Dentre as espécies de sigilo de dados relacionadas à temática, desponta o sigilo financeiro, passível de relativização mediante decisão judicial, ao contrário do insculpido na Lei Complementar nº 105/01, que autoriza a transferência direta de dados à Fazenda Pública, em desconformidade à ordem constitucional vigente. Respeitadas as balizas constitucionais, as informações serão passíveis de comunicação às autoridades fiscais, que têm o dever de mantê-las afastadas do conhecimento alheio, por influxo do sigilo fiscal. Essa outra espécie de sigilo de dados atua na proteção do mesmo direito à privacidade, ao impedir a revelação de tais informações a terceiros, cujo regramento foi flexibilizado com a edição da Lei Complementar nº 104/01. Da mesma forma que o sigilo financeiro e pelas mesmas razões, o sigilo fiscal somente admite afastamento por meio de decisão judicial. Os dados de matiz tributário, quando licitamente produzidos, poderão ser apropriados por agentes fiscais na forma de provas a lastrear a exigência de tributos e multas, por meio da composição de atos administrativos de lançamento ou auto de infração. As provas constituídas pela Administração serão reputadas admissíveis desde que respeitadas as normas constitucionais e legais aplicáveis, mormente os direitos e garantias individuais. Entende-se contrariamente à tendência doutrinária atual, que aceita passivamente a ampla divulgação de informes fiscais relacionados a contribuintes e terceiros em decorrência da nova legislação complementar, pois a fiscalização tributária, embora indispensável à realização do interesse arrecadatório, encontra limites delineados pelo legislador constituinte, os quais não são superáveis por enunciados infraconstitucionais

碩士
國立臺灣大學
法律學研究所
100
Generally speaking, the government plays the main role of criminal investigation and the gathering of evidence. Nevertheless, depends on case characters or other considerations, it is quite normal that private parties gather evidences spontaneously. Subsequently, problems generated from it can no longer be neglected. It often occurs that private parties acted illegally when gathering evidence. It would be difficult dealing with the admissibility of such evidence. The reasons lie in double sides, on the one hand, private parties conducted against criminal laws, rather than criminal procedure laws; on the other hand, the government itself did not violate procedure regulations in the process of gaining evidence. Acknowledges with above situations, the thesis introduces various kinds of theories with respect to the admissibility of evidence illegally obtained by private parties. The approach of theories can be generally subdivided into two categories: First, some literatures do not think that illegally gathering of evidence obtained by private parties directly causes its exclusion; the focus should be relatively put on the conduct of public authority, namely, the use of evidence. In comparison with it, other studies regard private-parties wrongful act as the essential reason why evidences drawn from it should be excluded. Based on the analysis, the thesis proposes a workable criterion, that is, evidence generated from private illegal conducts should be excluded as long as investigation authorities itself are unable to acquire it lawfully. The thesis focuses on the admissibility of evidence illegally obtained from private parties; however, how to handle evidences that gathered under the cooperation of governments and private parties? On 2006, the so-called”Liechtenstein-Affair” aroused general debates which worth a thorough study. Therefore, the thesis makes extensive discussions on the issues derivate from the case.

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.

This chapter examines the court’s powers to exclude unlawfully or unfairly obtained prosecution evidence by examining the position in relation to confession evidence excluded under ss. 76 and 78 Police and Criminal Evidence Act (PACE) 1984; and other prosecution evidence excluded at common law, under s. 78 PACE 1984, and as an abuse of process.