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Summary Procedural Criminal Law RUG

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This document is a summary of all Procedural Criminal Law for the course of Criminal Law in RUG, this document consists of case law and procedure to solving exam questions.

Last document update: 1 year ago

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  • November 8, 2023
  • November 8, 2023
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ARTICLE 8



Right to respect for private and home life.



NIEMIETZ V GERMANY => a test of whether Article 8 has been violated.

Step 1: Was there interference by a public authority that falls under the scope of

Article 8(1)? That is home, correspondence, private and family life.

Step 2: Can the interference be justified under Article 8(2)?

-> Is it in accordance with law?

-> Is it necessary in a democratic society?

-> Is it pursued with a legitimate aim?



KHAN V UK => in combination with Article 6(1), evidence obtained in violation of

Article 8 does not necessarily mean violation of Article 6(1).



-> Is it in accordance with law?

-> Is it necessary in a democratic society?

-> Is it pursued with a legitimate aim?

-> Is it accessible?

-> Is it foreseeable for evidence to be used in court?




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, ARTICLE 3 AND 6



Prohibition of Torture & Right to a Fair Trial



JALLOH V GERMANY => developed a 3 step test to see whether Article 6 is in

violation.

Step 1: What was the nature and degree of compulsion that was used to obtain the

evidence?

Step 2: Were there relevant safeguards? (presence of a lawyer, being able to

challenge the evidence, etc).

Step 3: Was the material obtained decisive?



Article 3 relevance: evidence that is obtained by means of Article 3 violation should

never be used as proof of guilt. Using evidence that exists dependent upon the will

of the accused and is retrieved by means of torture = violation.

Ill Treatment depends on the minimum standards of: duration, physical and mental

effects, sex and age of the victim.



GAFGEN V GERMANY => Article 3 is an absolute right. Confession / use of real

evidence obtained in breach of Article 3 = violation.



ECHR did not have specifics regarding inhumane and degrading treatment, this was

addressed by GAFGEN.




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