The sanction of nullity and exclusion of evidence in light of the case law of the European Court of Human Rights and the Court of Justice of the European Union

Abstract

Nullifying procedural acts and excluding evidence are, probably, the toughest sanctions that national procedural legislation enshrines. They are, by virtue of their nature, the procedural institutions that bear the most importance in determining the outcome of a trial. Whilst both the ECHR and the CJEU tend to avoid establishing clear cut rules concerning procedural sanctions, some principles can be extracted from their case law, to help aid interpretation of national law. The present study pleads for integrating the European conception in national law by means of reviewing the conceptual approach behind nullity and exclusion of evidence. It proposes an alternative manner of analysing the concept of “harm”, cantered on a three-step test for determining violation of human rights. In this context, several modern theories are illustrated, showing the advantages of integrating them in the practice of national authorities.