Protecting Human Rights through Exclusionary Rules? Highlights on a Conflict in Criminal Proceedings from a Comparative Perspective

Abstract

Do exclusionary rules safeguard respect for human rights in criminal trials? In criminal proceedings individual rights are constantly at risk, starting with the establishment of facts in order to reach a decision on the defendant’s guilt or innocence. Respect for human rights however must not cease when the bearer of those rights is suspected of having committed a criminal offence or is needed as a witness. Yet, the means to prevent violations of rights in criminal proceedings are limited. A promising instrument for avoiding certain human rights violations is the practice of excluding illegally obtained evidence from the criminal process. The rationale of so-called exclusionary rules is the expectation that law enforcement officers will refrain from employing methods of evidence-gathering that infringe human rights if they know that tainted evidence cannot be used at trial. The article assesses the impact of exclusionary rules in criminal proceedings by analysing the balancing of interests when deciding on the admissibility of evidence in European as well as in the Chinese and u.s. criminal justice systems.