Notes
The doctoral dissertation explores the issue of the admissibility of illegally obtained evidence in civil litigation from national, comparative, supranational and cross-border perspectives. No normative solution has yet been established within Slovenian civil legislation to tackle this issue; instead, when the courts unavoidably encountered illegally obtained evidence in practice, especially in the digital era characterised by the rapid development of technology and the increasing accessibility of new means to obtain evidence, solutions had to be developed through case law. In its landmark decision no. Up-472/02-12 of 7 October 2004, the Constitutional Court of the RS established the basic rule for assessing evidence obtained in the violation of constitutionally protected human rights by instructing the courts to apply the principle of proportionality when balancing the rights of both parties and to carefully determine which right should be given priority under the circumstances of a particular case. The case law of regular courts was supposed to provide more detailed criteria and answers to any subsequent questions. However, the analysis of Slovenian case law demonstrated that even after more than 15 years, judicial reasoning regarding the admissibility of illegally obtained evidence remains arbitrary, inconsistent or vague and, consequently, has only a limited value for the unification of case law. The thesis tackles several ensuing issues, especially the proper significance and scope of the right to evidence as part of procedural constitutional guarantees granted under Article 22 of the Constitution, the methodological approach to be used for the balancing of rights, and the criteria for assessing the admissibility of illegally obtained evidence. Furthermore, the dissertation addresses the scope and role of basic principles underlying the Slovenian civil procedure, with a special focus on the principle of material truth and the implications of the interaction between principles for the regulation of the admissibility of evidence. The comparative part includes a critical evaluation of alternative solutions developed through the legislation, case law and legal doctrine in Germany, Austria, England and Wales and the US, as well as the possibilities of their application within the Slovenian legal order. The results support the conclusion that foreign jurisdictions are facing similar problems regarding the use of illegally obtained evidence, and, moreover, that due to differences in national legal orders, foreign solutions should not be transferred into Slovenian legal order without extensive critical consideration. Nevertheless, some could serve as an example of good or even bad practices in further developments of domestic legislation in this area, subject to adjustments considering national particularities. As a signatory to international acts and the EU Member State, the RS is also bound by the European Convention on Human Rights and the Charter of Fundamental Rights of the EU. Although none of them contains explicit provisions that would impose requirements regarding the treatment of illegally obtained evidence in civil proceedings upon the Member States or signatories, both the European Court of Human Rights and the Court of Justice of the EU formed dissenting positions regarding the admissibility of evidence obtained in violation of certain fundamental rights protected by those acts (the prohibition of torture, the right to a fair trial, and, indirectly, the right to respect for private and family life). The dissertation scrutinises the criteria for the admissibility of evidence established in the case law of both courts, which are too often neglected or overlooked in Slovenian case law. The discussion is brought to a close by addressing the cross-border aspects of the use of evidence obtained in other EU Member States under European legal acts governing judicial cooperation in the taking of evidence.