Oldal 246 [246]
ZSOLT SZOMORA
in case a ground for the refusal of the EIO’s execution exists, the domestic court
will naturally tend to the exclusion of evidence obtained that way.
If we look into the Hungarian regulation, the secret investigative measure of
“trap” is made possible in order to identify and catch the perpetrator or collect
evidence of the criminal offence concerned." However, the application of a trap
presupposes that there is a suspicion that the person concerned might have already
committed the criminal offence, and the operation of a trap is explicitly excluded
by Hungarian law if the criminal investigation has not yet been launched formal¬
ly." The operation of the trap server in the case under discussion happened before
there was any suspicion against the defendant, and the criminal procedure was
launched only after and on the ground of the information that was obtained as a
result of operation of the trap server. This speaks for the exclusion of the evidence.
Against such automatic exclusion of evidence, Kusak argues that member
states, despite the lack of common standards, should not exclude evidence gathered
under different rules to those provided for under domestic laws. In case of doubt,
a balancing test should apply, verifying the impact of evidence on fundamental
EU rights, especially the right to defence, and the compliance of the evidence with
Article 6 of the ECHR.”
From this point of view, not considering the specific exclusion of the operation
of a trap server under Hungarian law, the evidence still would have to be tested
according to the general requirements of the application of covert investigative
measures, and even beyond the scope of Article 6 of the ECHR. Proportionality
is one of the most important and sensitive requirements affecting not only the
privacy rights of the defendant but those of anyone concerned by the measure.”
20 Art. 215 par. 3 of the Hungarian Code of Criminal Procedure (Be.).
?! Under the Hungarian Code of Criminal Procedure, a vast number of covert investigative
methods may also be applied during the so-called preparation phase prior to the
investigation (,,elékészité eljaras”). Applying a trap, however, is not allowed in order to
find suspicion of a criminal offence in the course of the preparation phase (Art. 341 Be.).
2 Kusak, Mutual admissibility of evidence, 399. The general question arises whether or not
domestic limitations to evidence are relevant to the actions of foreign states as foreign
states are not parties to the domestic criminal procedures, hence not addressees by the
exclusionary rules Karsai, Krisztina, Grenziiberschreitende Beweisverbote. In Walter Gropp
et al. (eds), Die Entwicklung von Rechtssystemen in ihrer gesellschaftlichen Verankerung,
Baden-Baden, Nomos, 2014, 153-162, 157-158. As for secret data gathering, the case law
of the ECtHR does not prevent the possibility of evidence obtained unlawfully under the
law of a member state still being admitted. See Schenck v. Switzerland referred to by Bard,
Emberi jogok és büntető igazságszolgáltatás Európában, 227. In this context, the danger of
forum shopping is mentioned by Jodie Blackstock, Ihe European Investigation Order, New
Journal of European Criminal Law 1 (2010), 481-498, 497.
The requirement of proportionality for the application of covert investigative methods is
specified in Art. 214 par. 5 Be.
23
+ 244 +