Definition and Significance of Evidence Exclusion Rules
Evidence exclusion rules are central legal institutions in German procedural law and determine under which conditions certain types of evidence or topics of proof may not be used in court proceedings. They protect the rights of parties involved, safeguard the integrity of the proceedings, and ensure compliance with constitutional principles such as the right to privacy, the right to a fair trial, and the right to effective legal protection.
Evidence exclusion rules can apply in criminal as well as civil or administrative proceedings. They particularly concern the collection, processing, and use of evidence in court proceedings. The legal basis for evidence exclusion rules is found in various procedural statutes, such as the Code of Criminal Procedure (StPO), the Code of Civil Procedure (ZPO), and supplementarily in the fundamental rights of the Basic Law (GG).
Types of Evidence Exclusion Rules
Substantive Evidence Exclusion Rules
Substantive evidence exclusion rules refer to certain facts or types of evidence that may generally not be considered in proceedings. A typical example is the prohibition on using evidence obtained in violation of participation rights or through deliberate circumvention of protective legal provisions, for instance during searches or seizures.
Personal Evidence Exclusion Rules
Personal evidence exclusion rules protect certain individuals from being compelled to testify or participate in proceedings. Examples include the right to refuse to give evidence for personal or professional reasons (§§ 52ff. StPO, § 383 ZPO) or the right of the accused to remain silent. The prohibition on interrogating persons of confidence, such as clergy, defense counsel, or doctors, also falls into this category.
Procedural Evidence Exclusion Rules
Procedural evidence exclusion rules arise from the violation of procedural regulations, such as an improper interrogation of the accused where the required instructions were not given (§ 136a StPO). They may also apply when judicial authorizations for measures like home searches are missing.
Legal Foundations
Constitutional Foundations
Evidence exclusion rules are closely linked to constitutional principles in German law. Basic personal rights (Art. 2(1) in conjunction with Art. 1(1) GG), the right to informational self-determination, and the right to a fair trial (Art. 20(3) GG, Art. 6 ECHR) set fundamental standards for the admissibility of gathering evidence and its subsequent use.
Statutory Regulations in the Code of Criminal Procedure
The StPO contains numerous express evidence exclusion rules, including:
- § 136a StPO: Prohibition of interrogation methods that impair free will (“prohibition on the use of evidence obtained by forbidden interrogation methods”)
- § 52 et seq. StPO: Rights to refuse to give evidence
- § 53 et seq. StPO: Professional privilege holders and exclusions on the use of evidence
- § 100a et seq. StPO: Legal basis for surveillance measures and the admissibility of their evidence
Evidence Exclusion Rules in Civil Procedure
Civil procedural law also recognizes evidence exclusion rules, e.g., those arising from general personal rights (see § 286 ZPO in conjunction with the Basic Law) and from rights to refuse to testify, such as the protection of mail and telecommunications secrecy (Art. 10 GG).
Categories of Evidence Exclusion Rules
Prohibitions on Gathering Evidence
Prohibitions on gathering evidence prohibit the collection of certain evidence from the outset. They generally exist in cases where fundamental rights of those involved are directly affected or legally protected spheres of interest are particularly affected.
Examples:
- Covert surveillance without judicial authorization
- Searches without required authorizations
Prohibitions on Using Evidence
If evidence is nevertheless collected in violation of the rules, the question arises as to its admissibility. Exclusions on the use of evidence regulate under what circumstances unlawfully obtained evidence may or may not be used.
Distinction:
- Relative exclusions: The court must assess, on a case-by-case basis, whether the use of the evidence is justified (balancing of interests).
- Absolute exclusions: The use of such evidence is always prohibited (e.g., in violation of the nemo-tenetur principle – the privilege against self-incrimination).
Distinguishing: Restrictions on Requests for Evidence, Subjects of Evidence, and Types of Evidence
Not every inadmissibility of evidence constitutes an evidence exclusion rule. Distinctions include:
- Restrictions on requests for evidence: Certain requests for evidence are inadmissible, e.g., when they concern a legal assertion.
- Restrictions on types of evidence: Specific types of evidence are excluded, e.g., police records following an inadmissible interrogation.
- Restrictions on subjects of evidence: Certain facts may not be introduced as matters for evidence, e.g., sexual history when irrelevant.
Legal Consequences of Violating Evidence Exclusion Rules
Consequences for the Proceedings
If an evidence exclusion rule is violated, the affected evidence may either not be collected at all or may not be used in the proceedings. This can result in a conviction or decision not being based on unlawfully obtained evidence. Comprehensive justification and documentation obligations by the court ensure these decisions can be reviewed.
Appeal and Complaint Options
Violation of evidence exclusion rules may constitute a procedural infringement and provide grounds for appeal or complaint. In criminal proceedings in particular, the unlawful collection or use of evidence constitutes a fundamental defect in the proceedings and may lead to a judgment being overturned.
Balancing and Exceptions
Evidence exclusion rules are subject to a balancing process under the rule of law. While some rules are strict and allow for no exceptions (absolute prohibitions), others may be set aside in light of overriding legal interests or compelling requirements of the public good (relative prohibitions).
Example: In life-threatening situations, the use of evidence that is generally prohibited may, despite its original inadmissibility, be permitted in the overriding public interest.
International Requirements and Comparison
International legal sources, especially the European Convention on Human Rights (ECHR), also influence the design and application of evidence exclusion rules in Germany. In particular, the right to a fair trial (Art. 6 ECHR) requires a proper balance between the interests of law enforcement and the individual rights of those involved.
Significance and Current Developments
Evidence exclusion rules secure balance in proceedings by protecting the interests of truth-finding as well as the personal rights and process integrity. Case law continuously develops detailed principles on the scope and practice of exclusion rules, especially in light of new technical possibilities for obtaining evidence (e.g., digital surveillance, data storage).
There is ongoing debate about the extent to which evidence exclusion rules should act as a barrier in relation to the requirements for objective truth-finding and how they must be weighed in individual cases.
Summary
Evidence exclusion rules are fundamental regulations in German procedural law that secure key principles such as the fairness of proceedings, protection of individual rights, and the rule of law. They are rooted in constitutional law, anchored in core procedural statutes, and are continuously developed further by case law. Evidence exclusion rules are an essential instrument for balancing the tension between effective legal protection and personal rights in court proceedings.
Frequently Asked Questions
What different types of evidence exclusion rules exist, and how are they distinguished?
In German law, evidence exclusion rules can generally be divided into three main categories: the prohibition on gathering evidence, the prohibition on using evidence, and the exclusion of certain types of evidence. Prohibitions on gathering evidence target the collection of evidence itself by forbidding investigative measures to obtain specific evidence in the first place—such as in the case of a violation of the right to inviolability of the home during a search. Prohibitions on using evidence, in contrast, relate to the later use of evidence in court proceedings—even if its collection was legal or actually occurred—a typical example being statements obtained without the required instruction and whose use in court is prohibited. Prohibitions on types of evidence specifically forbid the use of certain types of evidence as the basis for proof, as might apply to certain private diaries or matters subject to pastoral confidentiality. The distinction and precise allocation to the correct rule is decisive for the legal consequences and the question of whether the violation can be remedied.
In which areas of procedural law do evidence exclusion rules play a particularly important role?
Evidence exclusion rules are important both in criminal and civil proceedings but are particularly significant in criminal procedure. In criminal law, they especially serve to protect individual fundamental rights and procedural fairness, for example in the context of §§ 136a, 252, 53 StPO related to the rights to remain silent or refuse to testify, prohibited interrogation methods, or professional confidentiality obligations. In civil proceedings, exclusion rules apply, for example, in cases involving infringement of personal rights, inadmissible audio recordings, or information obtained in violation of data protection. In administrative proceedings, such rules exist especially regarding the collection of certain personal data and in the handling of information sources that require special protection.
Under what conditions can an existing prohibition on using evidence in criminal proceedings be overcome?
A prohibition on using evidence in criminal proceedings can generally be overcome if higher-ranking legal interests are involved and a balancing of interests determines that the public interest in solving the crime outweighs the individual’s interest in protection from state intervention. This is especially relevant in cases of so-called hypothetical lawful acquisition, where the prohibited evidence could have been legally obtained, in cases of imminent danger, or where the seriousness of the crime to be solved is particularly high (such as severe violent crimes or terrorism). The prohibition can also cease to apply if the person concerned subsequently gives valid consent or the protected interest (e.g., the right to refuse to testify) has been effectively waived.
How are prohibitions on using evidence dealt with during judicial evaluation of evidence?
In judicial evaluation of the evidence, the court is obliged to determine whether a prohibition on use applies before considering the evidence in the verdict. The evaluation can only be based on evidence that is both formally and materially admissible. If evidence is considered despite an applicable prohibition, this constitutes a significant legal error and may lead to the judgment being overturned on appeal. Therefore, the judgment must indicate that the court has independently examined the prohibition and, if necessary, completely disregarded any inadmissible evidence.
What legal remedies are available if a prohibition on using evidence is disregarded during proceedings?
If the court violates a prohibition on using evidence and bases its decision on inadmissibly introduced evidence, the parties have various legal remedies available. In criminal proceedings, revision under § 337 StPO is particularly relevant, since violation of an exclusion rule constitutes a ‘legal error’ within the meaning of the provision. In civil proceedings, appeals (§§ 511 et seq. ZPO) and revisions (§§ 542 et seq. ZPO) are possible if the judgment is based on an inadmissible evaluation of evidence. The prerequisite is always that the faulty use of evidence was indeed causal for the decision (causal link between the violation and the judgment).
Do evidence exclusion rules affect the investigation phase or only apply from the start of the main trial?
Evidence exclusion rules generally apply from the investigation phase, not just from the main trial. Even the investigating judge or the public prosecutor is required to consider prohibitions on gathering or using evidence. The binding effect of these rules thus begins with the first collection or securing of information and runs through the entire proceedings so that inadmissible evidence must not be used at any stage. However, the actual procedural sanction (exclusion of the evidence) usually only occurs in court proceedings, at the latest during the main hearing.
