The existence of an evidentiary exclusionary rule plays a vital role in
almost all legal systems. This rule requires that illegally obtained evidence is “excluded”
from the case file and withheld from the judges. While commentators generally
agree that such a rule is indispensable in a modern and fully functioning criminal
law system, much controversy exists as to the exact extent and context of such an
exclusionary rule. More precisely a fragile balance has to be found between on the
one hand protecting fundamental human rights and on the other hand ensuring justice.
In most countries the application of the exclusionary rule has weakened in recent
times: most legal systems shifted their focus and placed more emphasis on the importance
of ensuring justice. Those legal systems nowadays allow for exclusionary
rules which accept prosecutors to continue to use evidence during trials in spite of
the fact that it was obtained illegally or, in some cases, even unconstitutionally. Such
a view seems to be irreconcilable with the human rights enshrined in, for instance,
the European Convention on Human Rights. Still, an analysis of the jurisprudence
of the European Court on Human Rights shows that the Court seems to be hesitant
to take a strong position in the matter and prefers to leave the interpretation of the
exclusionary rule up to the discretion of the member states. Only in the most flagrant
cases of illegally obtained evidence (for instance evidence obtained through torture
or inhumane treatment) the Court has intervened and concluded that such evidence
cannot be allowed.

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• The use of illegally obtained evidence in criminal cases: a brief overview