01185928 002/19-09-2007-ECCC/SC Doc No. F26/12 exclusionary rule in question, the right to waive the prohibition - if at all possible - may belong to the accused, other persons protected by the rule, or may be remitted to a judicial or administrative decision. In any event, there is no support in human rights doctrine for construing the right to present a defence to either automatically trump exclusionary rules, or to find that the interest of accused must always be decisive in waiving them. Rather, the accused is entitled to waive the prohibition stipulated by an exclusionary rule only where the 153 In the U.K. "nothing [ ... ] shall in any criminal proceeding render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband" (Section 3 of the Evidence Act 1851 c. 99). In Canada spousal privilege is legislated under section 4(3) of the Canada Evidence Act, RSC 1985, c. C-5, which was affirmed in R. v. Zylstra, (1995) 99 CCC (3d) (ONCA Canada). Similar provisions exist in most European codifications, see, e.g., Article 416.1 of the Spanish Code of Criminal Procedure of 1882 (Ley de Enjuiciamiento Criminal) exempts a spouse and other relatives from the obligation to testify as witnesses (Num. 260, de 17 de septiembre de 1882, last modified 29 July 2015); Article 56 (4) of the Russian Code of Criminal Procedure (fn 149 above) 154 In the U.S. the Federal Wiretap Statute prohibits the interception and use of illegally intercepted communications (18 U.S.c. §§2510 et seq). "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the United States, a State, or a political subdivision thereof if the disclosure of that information would be in violation of this chapter." (18 U.S.c. §2515). See Gelbard v. U.S., 408 U.S. 41, 51-52 (1972) [witness could not be forced to disclose testimony from illegal wiretap to grand jury] and Lee v. Florida 392 U.S. 378 (1968) where the Supreme Court extended its interpretation of section 605 of the Federal Communications Act to render conversations intercepted and divulged in violation of the Act inadmissible as evidence in a state court. See also R v Tse 2012 SCC 16 where the Supreme Court of Canada regarded warrant-less wiretaps in emergency situations as unconstitutional due to a lack of oversight and accountability measures. The German Code of Criminal Procedure specifically prohibits the use of information concening the core area of private life. Section 1OOc( 5) (5) provides: "The interception and recording is to be interrupted without delay if during the surveillance indications arise that statements concerning the core area of the private conduct of life are being recorded. Recordings of such statements are to be deleted without delay. Information acquired by means of such statements may not be used" (Code of Criminal Procedure, 7 April 1987. Amended by Article 3 of the Act of 23 April 2014). Regarding exclusion based in the nature of the facts, at the ad hoc international criminal tribunals and at the ICC, prior or subsequent sexual conduct of a victim cannot be admitted into evidence regardless of its probative value, (ICTY RPE, ICTR RPE, Rule 96(iv); International Criminal Court (ICC), Rules of Procedure and Evidence, ICC-ASP/1/3 (Part.llA), adopted on 9 September 2002, Rule 71). 155 According to the Italian Constitutional Court, Judgment No. 40 (2012), paras 5, 6.4 (considerando in diritto), the right to present a defence is outweighed by the "essential and irrepressible interest" to protect national security, which prevails over other tenets. Therefore, information or documents if classified as State secrets by the Prime Minister, the dissemination of which could pose a threat to national security, cannot be disclosed or used in criminal proceedings, regardless of whether they are alleged to constitute inculpatory or exculpatory evidence. 156 On lawyer-client privilege see American Bar Association Model Rules of Professional Conduct, Rule 1.6 Confidentiality of Information [2015]). See also State v. Macumber, 544 P.2d 1084 (Ariz. 1976), p. 1086 describing how the Arizona Supreme Court affirmed the trial court, which asserted the attorney-client privilege after the death of the client and State v. Hunt, 659 S.E.2d 6 (N.C. 2008) where two men, Hunt and Cashwell, were convicted of a murder only to have Cashwell subsequently confess to his public defender of being the sole perpetrator, which the attorney did not reveal until after Cashwell's death (Colin Miller, "Ordeal by Innocence: Why There Should be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality", Northwestern University Law Review Colloquy, Vol. 102 (July 14,2008), pp. 391-392) . For privileges in civil law jurisdictions, see e.g., Article 178 of the Polish Code of Criminal Procedure (Code of Criminal Procedure Act, 6 June 1997, as amended on 1 July 2015) and Art. 56 (3) of the Russian Code of Criminal Procedure (fn 149 above), asserting priviledge against testyfying for legal counsel and religious confessors as to information acquired in the course of their duties. DECISION ON OBJECTIONS TO DOCUMENT LISTS - FULL REASONS 33/40