Journal article Open Access

On the assessment of evidence through the prism of the provisions of the Convention for the Protection of Human Rights and Freedoms and the legal approaches of the European Court of Human Rights

B.V. Makhlai

The article is devoted to the analysis of the notion of admissibility of evidence as one of the key principles of the right to a fair trial. The essence of the law of evidence is studied in the light of the Convention for the Protection of Human Rights and Freedoms. The European Court of Human Rights legal conclusions on the evaluation of evidence obtained in violation of human rights are considered.

In the course of active democratic transformations in our society, the right to a fair trial is an important role in ensuring human rights. The judge's rendering of a lawful and reasoned court decision is the result of the court's clarification of the circumstances relevant to the case. These circumstances must be supported by relevant evidence. According to the rules of criminal procedure, not all evidence can be used as a basis for a court decision, and the question of the inadmissibility of evidence often arises in judicial practice. First of all, the evidence obtained in violation of the fundamental human rights declared in the Convention is called into question. The most common violations are non-compliance with the requirements of Articles 3, 5 and 6 of the Convention on the Prohibition of Torture in Proceedings, non-compliance with the right to liberty and security of person in detention and the right to a fair trial in the context of violations. All these human rights violations occur in criminal proceedings in the process of evidentiary activities of law enforcement agencies. In this connection, the issue of law enforcement of the norms of the Convention and the provisions covered by the decisions of the European Court of Human Rights in criminal proceedings becomes especially relevant.

It should be noted that the Court does not decide on the admissibility of certain evidence, but only concludes on the fairness of the proceedings as a whole.

The question of the admissibility of evidence in criminal proceedings is determined exclusively by national law.

Evidence must be considered obtained illegally when its collection and consolidation is carried out in violation of the human and civil rights guaranteed by the Constitution of Ukraine, established by criminal procedure legislation, or by an unauthorized person or body, or by actions not provided by procedural norms. In this context, given the need to implement European standards in criminal proceedings, it should be noted that evidence must also be obtained guaranteeing the rights and freedoms guaranteed by international instruments, which have been approved by the Verkhovna Rada of Ukraine, in particular the Convention for the Protection of Human Rights and fundamental freedoms.

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