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ECJ: unlawfully obtained evidence in a criminal case must be excluded

11 februari 2019

During the weekly meeting on legal matters, our attorneys recently discussed a judgment by the European Court of Justice (ECJ) in the Dzivev case, which regarded the exclusion of unlawfully obtained criminal evidence in a case of VAT fraud. Although the outcome of this legal proceedings did not come as a surprise, a few considerations in the judgment did attract our attention. If we are reading this judgment correctly, the court is obliged to exclude evidence if this was obtained in violation of the principles and terms of the Charter. Such a ‘firm’ exclusion has not yet arisen from national case law and therefore it looks like the ECJ judgment is going to provide a remarkable guideline for national courts.


The Dzivev judgment

More specifically, this concerns the paragraphs 35 up to and including 37 and the conclusion that is drawn in paragraph 38:

35. In that regard, it follows, in particular, from the requirements derived from the principle of legality and the rule of law that the exercise of the power to impose penalties cannot take place, as a matter of principle, outside the legal limits within which an administrative authority is authorised, in accordance with the law of the Member State by which it is governed, to act (see, by analogy, judgment of 1 October 2015, Weltimmo, C‑230/14, EU:C:2015:639, paragraph 56).

36.In addition, the interception of telecommunications amounts to an interference with the right to a private life, enshrined in Article 7 of the Charter. Such an interference may be allowed, in accordance with Article 52(1) of the Charter, only if it is provided for by law and if, while respecting the essence of that right and subject to the principle of proportionality, it is necessary and genuinely meets objectives of general interest recognised by the Union (see, to that effect, judgment of 17 December 2015, WebMindLicenses, C‑419/14, EU:C:2015:832, paragraphs 71 and 73).

37 In that regard, it is common ground that the interception of telecommunications at issue in the main proceedings was authorised by a court which did not have the necessary jurisdiction. The interception of those telecommunications must therefore be regarded as not being in accordance with the law, within the meaning of Article 52(1) of the Charter.

38. It must therefore be observed that the provision at issue in the main proceedings reflects the requirements set out in paragraphs 35 to 37 above, in that it requires (underlining by Hertoghs) the national court to exclude, from a prosecution, evidence such as the interception of telecommunications requiring prior judicial authorisation, where that authorisation was given by a court that lacked jurisdiction.


Interception of telecommunications with authorisation from a court without the necessary jurisdiction

In the Bulgarian criminal investigation into VAT fraud, an interception of telecommunications had been arranged with authorisation from a court which did not have the necessary jurisdiction. The Bulgarian criminal code has a provision that is more or less similar to article 359a of the Dutch Code of Criminal Procedure, on the basis of which a breach of procedural rules may be punished with the reversal of a judgment or a ruling. However, from this judgment we do not conclude that there is an obligation to exclude the evidence, although the Bulgarian court seemed to present the case in such a way that exclusion seemed the obvious answer. The ECJ agreed with this view without reservation.


Defence with regard to exclusion of unlawfully obtained evidence still a good idea

Even apart from the question whether this reading of the ECJ’s  judgment was coloured by some opportunism, this did raise the question whether the cautious line that the Tax Division of the Dutch Supreme Court has been following on this matter (the so-called ‘so much’ criterion) is consistent with that of the ECJ. The ECJ seems to give considerable weight to fundamental rights and the principles of due process, even if this impedes punishment of severe VAT fraud. It is a pity that a possible adjoining Bulgarian tax case did not also constitute part of this procedure, since it may then have become apparent whether the ECJ would wish to make a distinction between those cases.

We conclude that although appeals to a breach of procedural rules are not given a favourable reception by the national courts, this judgment could provide more specific support for a defence argument that illegally obtained evidence should be excluded.