RICERCA ITALIANA     

Research program

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

University Co-ordinator

Università degli Studi di BOLOGNA - SCIENZE GIURIDICHE "A.CICU" - BOLOGNA(BO)

Research Unit Leader

Giulio ILLUMINATI

Description

The aim of the research is to draft a paper on the admissibility and exclusionary rules of testimony in criminal procedure in the European community area. The implementation of Community law, in particular the European Constitution recently approved, show the need of an analysis on the feasibility of a progressive harmonisation of admission/exclusion criminal evidence rules. The Constitution itself affirms the need of a implementation of a deeper harmonisation (art. III-270).
Admissibility and exclusionary rules play a fundamental role in the project of the testimony law harmonisation. The admission of evidence is the first one of the parts of evidence proceeding (admission – assumption – appreciation); starting from the sixties, it is considered an important segment of the trial because it puts in evidence the roles of the public prosecutor and of the defendant in the trial, the relationship between the parties and the judge, the criminal trial rules.
Member States’ legal systems use a variety of procedural measures concerning evidence, and in particular concerning testimony for proceedings in criminal matters. In some of them the power to introduce evidence in trial relies on prosecutor and on the defendant (in those systems the judge is left apart from the dispute).
In some Member States, judicial authorities have general powers to introduce testimony and as a consequence the prosecutor and the defendant have no co-operation power concerning evidence; they are entitled only to argue on evidentiary choices made by the judge.
The issue implies another fundamental aspect of criminal trial: the parties’ right to evidence. If the system recognises this right, we shall investigate on how large and how deep this power is: does it take place only at trial or also during the preliminary stage?
The analysis of exclusionary rules plays a primary role too: it is a fundamental aspect of proceedings in criminal matters because it indicates how legal system is bound to the legality principle.
This short presentation introduces the main issue: admissibility/exclusionary rules for criminal evidence are the real trial heart. Though all differences between member States law, we can point out a growing convergence of different systems; contamination is due to the work of the European Court of Human Rights. His case-law is the starting point for an analysis of common rules concerning criminal evidence: though the Strasburg Court approach is concentrated on the respect of fundamental rights of the defendant, sentences provide many general rules on the admission and the exclusion of testimony (anonymous witness, children witness, expertise). In the past years, European States introduced procedural reforms following the statements of the European Court of Human Rights. The analysis of the European Court case law has nowadays a rising importance due to the entrance of the European Union in the conventional area (art. I-9).
Concerning the method to be followed to draft an European statute of testimony, research would concentrate on European law and on drafting materials such as the Corpus Juris. The second step it will concentrate on the European Court of Human Rights case law, that plays a fundamental role in the implementation of the European criminal system.
The third step implies the analysis of national criminal systems of European member States. For many of them, the research would take into consideration national codified law; in other cases, it would be useful a case law analysis, especially for common law countries. Once differences between member States will be pointed out, the research targets to list the issues that ask for an implementing harmonisation. The aim of the project is a draft – following the example of Green Papers of the European Union – to be considered a concrete proposal for the European Commission and for other authorities involved in the criminal justice progress in Europe.