RICERCA ITALIANA     

Testimonial evidence in a European area of freedom, security and justice: mutual recognition and harmonization scenarios

Università degli Studi di Bologna

Abstract

The research has the goal to draft a proposal of harmonization between member states of the rules on testimonial evidence. The growth of transnational forms of criminality, caused by the abolition of national borders between member states, imposes the states to harmonize their procedural disciplines. Such harmonization is necessary to give effective impulse to the development of the principle of mutual recognition of criminal evidence which would represent a great instrument in the fight against transnational crime.
The choice of the field to harmonize has fallen on testimonial evidence because of its strategic importance within the criminal trial.
The research intends to point out which part of the discipline of testimony would need harmonization and what content such harmonization could have. Such aim needs a deep and careful preparatory study.
Community institutions strongly ask for the implementation of harmonization: it is testified by different drafts adopted in the last five years; they target, on one hand, to introduce a stronger protection of financial interests of the EU, and on the other hand to give effectiveness to the struggle against organised transnational crime. The Constitution recently approved shows the primary role of a deeper harmonization of procedural rules as a starting point for the creation of a freedom, security and justice area.
Concerning methodology to be followed, the research will be composed by the following section: a repertory of community law and international law concerning criminal evidence rules; a study on international tribunals case-law and on ECHR case-law; selection of most representative problems related to testimonial evidence who need to be harmonized; a comparative analysis of some most representative national legislations in order to find guide-lines; a draft based on minimal standard guarantees concerning testimonial evidence; a proposal of harmonization to be presented (such as a green paper) to competent institution as a starting point for an European debate on testimonial evidence. <<<

Principal Investigator

Giulio ILLUMINATI Università degli Studi di BOLOGNA

Research Objectives

The research has the goal to draft a proposal of harmonization between member states of the rules on testimonial evidence. This analysis will be composed by the following sections: 1) an outline of European rules in force and of guarantees provided by the ECHR 2) a concise analysis of different solutions offered by national legislation 3) a draft containing proposal of harmonization.
The research goal will follow the tradition of community green papers. The study would represent a starting point for a regional debate on minimum standard rules concerning testimonial evidence –particular attention will be dedicated to guarantees – but also a concrete proposal of harmonization directed to community institutions (European Commission) and national authorities. <<<

Timescale

24 months

National and international background

The recent approval of the European Constitution is another proof of the irreversible process of foundation of a European Union with full political competence. This implies that criminal justice policies will also be more and more included within the Union's decisions and it is even possible to start imagining a european criminal trial. However, the scenario of a criminal trial of the Union still is far to be concrete. But, many other steps have already been taken in developing the Union's competences and powers within the European judicial cooperation. Such development was necessary for better facing criminality. After all, the freedom of european citizens to move within the Union without any border implies the logical consequence that also investigating criminal authorities should be able to move over any national barrier.
The Union has lately give birth to many different institutions (Olaf, Europol, Eurojust) and has created specific instruments (magistrates links , European judicial network, common investigative teams) so to increase and improve judicial cooperations between authorities competent for investigating on dangerous crimes.
In particular, the Tampere European Council of 1999 has set the principle of mutual recognition. Such principle is becoming more and more popular within the Union and is today conceived as a cornerstone of judicial collaboration.
The reciprocal admission of evidence among the EU States is explicitly included by the EU Legislator between the issues for which there is a real need of harmonisation. In fact, the new EU Constitution provides for the power to draft some Framework Decisions in this field, with the purpose to find a minimum common level between the EU States, respecting at the same time every characteristic of the different legal traditions (art. III-270 EU Const.).
The aim of the mutual recognition of judicial decisions in criminal matters is not pursued only by the EU Constitution. There are, in fact, some others Framework Decisions, in some cases yet approved, in others under discussion, dealing with this issue. First of all, the European Arrest Warrant (2002/584/GAI – June 13th, 2002); moreover, the Framework Decision on freezing propriety and evidence (2003/577/GAI – July 22th, 2003). At the exam of the Council of Ministries is the Draft Framework Decision called European Warrant for Evidence and Data (2003/0270 (CNS) – November 14th, 2003), the Draft Framework Decision on the minimum guarantees in the criminal process (2004/0113 (CNS) April 28th, 2004), and the Draft Framework Decision on the mutual recognition of conviction judgments between EU Member States (2005/0018 CNS – March 17th, 2005). Toward the unification of the criminal systems are directed the Corpus Juris project (drafted in 1996 and amended in 2000) as well as the Green Paper for the protection of the EU financial interests ( February 19th, 2003, COM (2003) 75 def).

Examples of the central position taken by the principle of mutual recognition are the framework decision on the european arrest warrant, the framework decision on the execution in the European Union of orders freezing property or evidence. It is also very recent the entry in force of the Convention on mutual judicial assistance (signed in Brussels, on the 29th of May 2000).
However, one brick is still missing in the construction of a full and effective judicial cooperation: it will be impossible to build a strong and effective cooperation unless the Union imposes a minimum of harmonization in the criminal rules (see DELMAS-MARTY, Necessità, Legittimità e Fattibilità del Corpus juris, in GRASSO-SICURELLA (a cura di), Il Corpus juris 2000, Milano, 2003, 241).
The harmonization between legislation is a scenario drawn by the new Constitution. Article III-270 § 2 states that «To the extent necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension, European framework laws may establish minimum rules. Such rules shall take into account the differences between the legal traditions and systems of the Member States. They shall concern: (a) mutual admissibility of evidence between Member States; (b) the rights of individuals in criminal procedure; (c) the rights of victims of crime; (d) any other specific aspects of criminal procedure which the Council has identified in advance by a European decision; for the adoption of such a decision, the Council shall act unanimously after obtaining the consent of the European Parliament».
The harmonization between national rules of criminal justice favours the development of mutual faith between member states and it is a condition for a full affirmation of the principle of mutual recognition. The harmonization can also permits a better european cooperation between judicial national authorities. The development of the Union in the field of criminal justice needs some minimum common rules.
The European constitution provides a harmonization both of the rules of criminal law and of criminal procedure. In particular, the harmonization between procedural rules is essential for a more efficient functioning of the judicial cooperation.
Indeed, the harmonization is an operation very hard and extremely complex. In fact, the harmonization involves the states' juridical traditions and it can also impose to abandon some of those traditions. Having regard to national traditions, the harmonization process should not imply a refusal of those traditions. It rather shall try to find common minimum standards that can help cooperation and mutual recognition. At the same time, harmonization testifies the request for a growing co penetration between Member States, fundamental steps to affirm a common civilization and culture all over Europe.
However, harmonization seems to be no more postponed, especially concerning criminal evidence. The issue of mutual recognition of evidence collected in another Member State (free movement of evidence) is an impelling need, as the Green Paper on criminal law protection on the financial interests of the Community have shown.
Facing this demand of harmonization, projects are still fragmentary. When an initiative is adopted, the problem is the lack of studies and research on the possible convergence between national legislations.
Considering proposals coming from the Europea Union, for example, this difficulty is demonstrated by the Council Framework Proposal on certain procedural rights in criminal proceedings throughout the European Union (COM (2004) 328).
There is a strong demand of research projects able to point out the European panorama of criminal legislations concerning criminal trial, comparing different solutions adopted by European Member States. At the same time, it is necessary a to analyse the detail of the European Court of Human Rights case-law concerning criminal matters, trying to put in evidence fair trial rights emerging from Strasburg decisions. <<<