25 II.5.2 National implementation In the Gäfgen case, the European Court of Human Rights notes some of the generally accepted caveats in domestic legal regimes to excluding evidence on the basis of the fruit of the poisonous tree doctrine. In particular it notes the necessary ‘causal link’ between the illegal activity and obtaining the evidence, and whether evidence ‘would have inevitably been discovered’.111 This is borne out by our comparative research. In Spain, which had applied the exclusionary rule categorically since the 1980s, the Constitutional Court introduced exceptions to the doctrine in 1998 to mitigate its reach.112 These exceptions included the ‘nexus of illegality’ (the causal link or illegal taint of the activity and the evidence), the inevitability of the evidence being discovered and the independent source exception. In the United States four exceptions to the exclusion of derivative evidence are generally recognised: (a) it was discovered from a source independent of the illegal activity; (b) the discovery was inevitable; (c) when the connection between the prohibited conduct and evidence is, in certain circumstances remote or has been interrupted by intervening circumstances; and (d) if the primary evidence was illegally obtained, but admissible under the good faith exception, its derivatives (or ‘fruit’) may also be admissible.113 different considerations when admissibility of such evidence: assessing the i) In Commonwealth Australia, for example, judges take into consideration a range of factors including: (a) the gravity of the impropriety or contravention; (b) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and (c) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.114 ii) In Japan, the Supreme Court has also made clear that, when assessing illegally obtained evidence, the factors that would be taken into consideration are whether: ‘(i) the process by which it was obtained or seized was seriously illegal […] and (ii) it appeared unreasonable from the perspective of preventing illegal investigation in the future to admit such an article as evidence’.115 iii) In China: ‘[p]hysical evidence or documentary evidence that is not collected according to statutory procedures and is therefore likely to materially damage judicial justice shall be subject to correction or reasonable explanations, and shall be excluded if correction or reasonable explanations are not made’.116 What would suffice as a ‘correction’ or ‘reasonable explanation’ for torture is not clear. Other countries also apply an exclusionary rule to derivative evidence obtained by torture, but apply 34 Known as a ‘monist’ legal system. 35 French Republic v Haramboure, Cour de Cassation, Conseil d’Etat, 7 novembre 2001, n°228817. 36 The Constitution of Kenya, 27 August 2010, Chapter 1, Section 2(5). 37 Kituo cha Sheria & 7 Ors v Attorney General, High Court at Nairobi, Constitutional and Human Rights Division, Petition 19 of 2013. 38 Boletin Oficial del Estado núm. 268, de 9 de noviembre de 1987, páginas 33430 a 33436. 39 Such countries are often referred to as ‘dualist’. 40 Constitution of the Republic of South Africa, 10 December 1996, Section 231(4). 41 S. Juaseekoon, Recent Developments of Legal System in Thailand, ASEAN Law Association, 10th General Assembly (2009), p.2. 42 A & Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71, para 112. 43 Constitution of Japan, 3 November 1946, Article 38(2). 44 Criminal Procedure Code of Germany (Strafprozeßordnung (StPO)), Section 136a. 45 Code of Criminal Procedure of Tunisia, Decree-law No. 2011-106, Article 155. 46 Evidence Act 1995, Sections 84 and 138. 47 Ley General para Prevenir, Investigar y Sancionar la Tortura y Otros Tratos Crueles, Inhumanos o Degradantes, 2017, Article 50. 48 A and Others v Secretary of State for the Home Department (No 2) [2005] UKHL 71. Note, however, that there is a legislative exclusionary regime for confessions (Police and Criminal Evidence Act 1984, Section 76). 49 Constitution of Spain, 6 December 1978, Article 15: ‘Everyone […] under no circumstances may be subject to torture or to inhuman or degrading punishment or treatment’. 50 Spanish Judiciary Act, Article 11.1 (Ley Orgánica 6/1985, de 1 de julio, del Poder Judicial). 51 Chavez v Martinez (01-1444) 538 U.S. 760 (2003) 270 F.3d 852. 52 Atuar v United States, 156 Fed. App’x 555, 559 no.5 (4th Cir. 2005): ‘As a general principle, due process prohibits the United States from using involuntary statements in a criminal proceeding that were obtained through torture or other mistreatment’.