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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 formally." 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 +
