Proof or Promise?

Protection of Privacy, “Covert Gathering of Information” and Exclusion of Evidence in Civil Proceedings

Abstract

Based on the public interest necessity of protecting against breaches of confidence, the present study argues for even stronger protections of privacy in the context of the most recent civil procedure reforms through the theory of constitutional convergence renowned in comparative constitutional law. The reasoning starts out of the “concurring fundamental rights positions” test in the practice of the Hungarian Constitutional Court, and as part of the argumentation, the paper provides an overview of Anglo–Saxon, mainly English and American common law in terms of doctrines and classifications regarding the exclusion of unlawfully obtained evidence, both in civil and criminal procedure. Furthermore, the paper also presents certain European constitutions, which contain exclusionary rules. In connection with breaking down barriers between legal families and legal systems, and in the course of examining ways of legal importing, the paper also takes a stand in the so-called “Transplant Debate”, while also presenting it.