Summary

Not every violation of procedural law in the collection of evidence inevitably leads to its inadmissibility in the prosecution of a person. In order to determine the admissibility of evidence, it is necessary to assess whether such evidence would not have been obtained if the rule had not been violated. If the violation of the rule has led to evidence being obtained that would not have been obtained without the violation of procedural rights, the evidence is inadmissible. The use of the evidence may be more likely to be admissible if the criminal authorities would have obtained the evidence anyway without violating the rule. From the point of view of the admissibility of evidence, it may have a different meaning whether the purpose of the violated rule is the direct protection of suspects and accused persons, or whether the violated rule primarily serves the purpose of protecting the victim or witness, or whether the rule has another purpose. The violation of the standard protecting the suspect and the accused should more likely result in the prohibition of the use of the relevant evidence.

At least some of the prohibitions on the collection of evidence set out in subsection 64 (1) of the Estonian Code of Criminal Procedure should be absolute so that the court has no discretion as to the admissibility of the evidence obtained by the violation. For example, there should be an absolute prohibition on the use of testimony obtained through torture, the use of violence, the use of devices that affect the faculty of memory, and the degrading of human dignity. One example of such a violation is the failure to provide an explanation to the person being interviewed or examined concerning their rights. In such cases, the court has no discretion as to the admissibility of the evidence. This is an absolute prohibition on the use of evidence, which should be expressly provided in the law.

The Estonian Code of Criminal Procedure could be amended to explicitly prohibit the collection of evidence through the granting of non-statutory benefits and fraud. The admissibility as evidence of previously given testimony needs to be assessed in case law.