EL DERECHO AL USO EQUITATIVO DE LAS PRUEBAS: DESMITIFICANDO LA ILICITUD PROBATORIA EN LA JURISPRUDENCIA DEL TRIBUNAL EUROPEO DE LOS DERECHOS HUMANOS (TEDH).

The article analyzes the unlawfulness of evidence in the case law of the European Court of Human Rights (ECtHR) and its relationship with the right to a fair trial. It examines a two-level analytical model to determine whether the violation of fundamental rights in obtaining evidence implies a violation of the right to a fair trial. Different scenarios of unlawful evidence are addressed, such as obtaining evidence through torture, inhuman or degrading treatment, police provocation, and violation of the right to privacy. The article also discusses the application of the rule of exclusion of unlawful evidence in the Spanish legal system and the influence of ECtHR case law in this matter. The article summarizes the doctrine of the ECtHR regarding the right to remain silent and not to self-incriminate in criminal proceedings. The ECtHR establishes that these rights are essential guarantees that are part of the right to a fair trial, even if they are not expressly recognized in the text of the European Convention on Human Rights. The Court jointly and alternatively analyzes these rights in its judgments, considering them as part of the same right. However, ECtHR case law on this issue tends to be casuistic, and there is no uniformity in the factors that can be considered to determine the fairness of the trial. [Extracted from the article]