Rule of Law v. Balancing Test: The Admissibility of Illegally Obtained Evidence in Civil Procedure

Abstract The article aims to reveal, explain and critically assess the balancing test as a legal tool to decide on the admissibility of illegally obtained evidence in civil procedure. The main part of the article is divided into four sections. First of all, the article provides a general overview of the concept of illegally obtained evidence. In other words, the research tries to outline how the concept of illegally obtained evidence should be understood. Secondly, the article provides an overview of one of the most common ways of resolving the issue of the admissibility of illegally obtained evidence – the balancing test. Thirdly, the article assesses the balancing test while employing two requirements derived from the rule of law. The research shows that, in the context of the admissibility of illegally obtained evidence, the balancing test does not meet 1) the requirement of legal certainty and 2) the requirement that civil procedure must be based on the rule of law and not on the rule of men. Lastly, the article concludes that in order to avoid identified shortcomings, the balancing tests should be characterised by a predefined exhaustive list of criteria that should be balanced when deciding on the admissibility of illegally obtained evidence and should not contain too broad, vague balancing criteria.