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UNLAWFULLY ACQUIRED EVI-DENCE NOT ADMISSIBLE
Gathering evidence of criminal activity by eavesdropping or other illegal means may in it-self constitute breach of confidence under the Criminal Code or other offences. But courts have taken differing views in practice as to whether evidence so acquired is admissible in court proceedings, and whether it can therefore be made the basis for conviction and sentencing. In a 2002 judgment, the Supreme Court stated that the purpose of criminal proceedings is to discover the truth, in order that the state may correctly use its power to impose criminal sanc-tions, and thereby uphold social order and secu-rity. However, in the interests of protecting human rights, the methods employed should be lawful, clean, and fair. If evidence has been gathered by procedures other than those provided for by law, then in accordance with the principle of proportionality, the court must consider the balance between protecting human rights and upholding the public interest, in order to decide whether the unlawfully gathered evidence should be admitted in evidence.
The recently introduced Article 158-4 of the Code of Criminal Procedure, which will take effect on 1 September 2003, explicitly provides that if evidence gathered by public servants in the course of a criminal prosecution is acquired by procedures other than those defined by law, then when determining whether to admit such evidence, the court must consider the balance between the public interest and the protection of human rights. The legislative intent of this pro-vision is identical with the thrust of the above judgment of the Supreme Court. However, the amended code makes no provision as to the ad-missibility of evidence unlawfully gathered by persons other than public servants.