RICERCA ITALIANA     

Research program

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

University Co-ordinator

Università di PISA - DIRITTO PUBBLICO - PISA(PI)

Research Unit Leader

Enrico Antonio MARZADURI

Description

Today the standard instrument of reference at European level for the circulation of evidence between legal systems continues to be the forty-year old Strasburg Convention of 1959. It has been underlined, and not by chance, that even the Brussels Convention of 2000 the Convention of 1959 and its additional protocol of 17/3/1978 as well as all the Conventions in force between Member States (see L. Salazar, La nuova Convenzione europea sull'assistenza giudiziaria in materia penale, I, in DPP 2000, 1535). Having said that, the Research Unit considers that the proposed study should start from the observation that it is impossible to ignore the emergence of a tendency towards the lowering of the levels of the defence of territorial sovereignty in favour of a wider recognition of the law of single States and of the possibility of the legal authorities of these States to act abroad. From this point of view, it is particularly worth mentioning the provisions in articles 5 and 6 of the Brussels Convention of 2000, which, in order to simplify procedures as much as possible, reduce or even eliminate the political phases to which letters rogatory are normally subject and creating what may genuinely be considered a real "Copernican revolution". This is a field of enquiry which may turn out to be particularly profitable for the area of research proposed by the Pisa Research Unit: in fact it seems that direct contact between the judicial authorities may become the rule rather than being confined to the exception of urgent cases. Not only: the subjugating of activities of evidence gathering in a broad sense to the formalities and procedures of the Member State requesting it (art. 4 Convention 29/5/2000) would seem to constitute a further and significant step forward along to a lighter and more efficient model of cooperation. We are clearly looking at a situation that has yet to explored, even if we must immediately note how this same expectation is not formulated in such a way as to categorically prevent the possible application of specific clauses whereby the State which receives the request may restrict its execution, in accordance with the provisions of article 5 of the Convention on Assistance of 1959. Again this Unit wishes to point out the extreme innovativeness – although its operational implications have still to be evaluated - of the provision with which, in an attempt to provide at least a partial response to what has always been seen as one of the principle hindrances to any speedy collaboration, requires that the State receiving the request for assistance should satisfy the request "as quickly as possible" taking "fully into consideration, as far as possible, the procedural terms as well as other terms indicated by the State making the request" (art. 4, comma 2 Convention 29/5/2000).


Important issues arise from the question of how to collect oral evidence: it is sufficient to think of the many problems which are inevitably associated with possibility of hearing witnesses, experts and the defendant (although in this last case the rules are more restrictive) by videoconference from the State from which assistance is requested. More precisely, article 10 of the Convention of 29/52000 requires that the use of this technology should not be contrary to the "fundamental principles of the national State" and dependent on the availability of the technical means necessary. The possibility of hearing the defendant using telecommunications technologies is more limited as this is governed by two conditions: an ad hoc agreement between the States and the consent of the defendant. Finally it is interesting to note the provision (article 11, Convention 29/5/2000) which permits the hearing of witnesses and experts (excluding, therefore, the defendant) by telephone: besides not being contrary to the "fundamental principles of national law", this requires the consent of the person being heard.



No less interesting for the purposes of the research in question will be a systematic study of the solutions which have been adopted on the issue in the context of the so-called "supranational" justice and which, at least in some parts, are still at an experimental stage. The Statutes of the Tribunals for ex-Yugoslavia (art. 29) and for Ruanda (art. 29) limit themselves to requiring single States to cooperate: in particular the State receiving the request is required to "carry out, without undue delay, the requests for assistance" which include the hearing testimony and the production of evidence" (art. 29 Statute ICTY). However, there appear to be no indications of how evidence should be collected, about which there are problems concerning both who can legitimately carry this out and the rules which should regulate the process of collection.

On the first issue, a multiplicity of solutions are emerging from individual States: some legal systems allow evidence to be collected directly by international authorities, others reserve this task to national bodies, and yet others allow for participation by both national bodies and the appropriate bodies of supranational Courts (M. Castellaneta, La cooperazione tra stati e tribunali penali internazionali, Bari 2002, 271 ss.). On this subject, our legal system, in the enacting legislation on the two "special" tribunals (respectively l. 14/2/1994, n. 120, recante disposizioni in materia di cooperazione con il Tribunale internazionale competente per gravi violazioni del diritto umanitario commesse nei territori della ex- Jugoslavia, e l. 2/8/2002, n. 181, recante disposizioni in materia di cooperazione con il Tribunale internazionale competente per gravi violazioni del diritto umanitario commesse nel territorio del Ruanda e Stati vicini), leans towards a system in which it is the national authorities who carry out the requested actions, although supranational bodies may be allowed to be present at the execution of the act (art. 10.5, l. 120 / 1994, and art. 10.5, l. 181/2002). The corresponding provisions in article 99 of the Statute of the International Criminal Court raise no few problems. In effect, there appears to be no general clause concerning the possible for representatives of the Court to be present at the acquisition of evidence. However, it does provide that "the Prosecutor may execute such request directly on the territory of a State" and a similar power is recognised precisely in order to allow "the interview of or taking evidence from a person on a voluntary basis". It remains to be seen what should be understood by the clause which even allows for the exclusion of the local legal authorities when "it is essential for the request to be executed".

On the second issue mentioned above, although on the one hand the Statute of the International Criminal Court provides that the acquisition of evidence should proceed "in accordance with the relevant procedure under the law of the requested state", on the other hand it adds that one must proceed "unless prohibited by such law, in the manner specified in the request", allowing, however, a power to the Court to indicate particular conditions for the acquisition. This creates some embarrassment at the level of interpretation, leading one part of doctrine to conclude that (G. Illuminati, Il processo davanti alla Corte penale internazionale. Linee generali, in AA.VV., Crimini internazionali tra diritto e giustizia, edited by G. Illuminati – L. Stortoni – M. Virgilio, Torino 2000, 121). Beyond the letter of the law there are those, however, who propose an interpretation which leans even further in favour of a tendential "supremacy" of the Court in determining the way in which the acquisition of evidence shall be carried out. Under the general clause of adjustment contained in article 88 of the Statute ("States Parties shall ensure that there are procedures available under their national law for all of the forms of cooperation which are specified under this Part"), the possibility of refusing to cooperate is in fact excluded if it is based on the inadequacy of national procedures with respect to the rules of enquiry laid down by the Court (, K. Prost – A. Shlunk, sub art. 99, in Commentary on the Rome Statute of the International Criminal Court, Baden – Baden 1999, 1137). From this point of view it would seem that it might even be necessary for individual States to set up a real "micro-system" of procedural rules agreed upon with the international Court and in which only those prohibitions imposed by respect for the fundamental principles of the national body of laws would be allowed. This, moreover, is the condition which is expressly envisaged by art. 10.4, l. 120/1994 for the Tribunal for ex-Yugoslavia (as well as, is in the same vein, by art. 10.4 1. 181/2002, for the Tribunal for Ruanda), when the procedure follows the forms requested by the supranational authority.
The Research Unit's proposal is to carry out a systematic study of the supranational jurisprudence which has grown up in the sector of judicial cooperation and to produce an organic reconstruction of the normative system which has yet to be enacted. It will, of course, carry out a detailed examination of the proposals from the various legal systems which have undertaken to support the International Court.

The final frontier for judicial cooperation - even if only at the planning stage for the moment – can be found in the proposal of the European Commission for a framework decision concerning the "European Warrant for the Acquisition of Evidence" (concerning which see G. Iuzzolino, Arriva il mandato europeo di acquisizione delle prove, in D&G 2004, n. 9, 110 ss.). The traditional model of judicial assistance (based on a "dual track" in which the purely jurisdictional phase is accompanied by a typically political-administrative activity) has, to tell the truth, already been modified following the recent Convention on Judicial Assistance of 29/5/2000, which, as we have already said, has introduced a number of important novelties (one only has to look at the provision for direct assistance between judicial authorities even when there is no specific reason of urgency and the numerous exceptions allowed for compared to the traditional criterion of lex loci). In this light, the proposal of a framework decision could really provide a formidable spur to the process of modernising the present conventional sector of judicial assistance: in the specific area of the acquisition of pre-existing evidence, for example, one can foresee the abandoning of the "dual track" approach, together with the suppression of the classic powers of interdiction and impulse recognised to the political authority today. Given that the present model for acquiring evidence is slow and complex – and thus not really compatible with the creation of a common area of security, freedom and justice (the so-called third pillar of the Union) – the proposal of the Commission aims at outlining a new model of cooperation between Member States which is based on "non-rogatory" assistance. Thus Member States are required to adopt a standardised measure called European warrant for the Acquisition of evidence (art. 59) which, based on the so-called European order (or euro-decree), that is to say on a standardised form which will be annexed to the framework decision, will have to be used by all national judicial bodies in trialling the de quibus activies.
Specifically, article 7 of the project establishes that the warrant for the obtaining of evidence must be transmitted by the judicial authorities of the State issuing the warrant directly to the body which is competent for its execution. As far as the procedure which governs the acquisition of evidence is concerned, the executing authority must, above all, recognise the mandate without formalities (art. 11). The issuing authority, furthermore, is authorised to require that certain formalities and procedures be respected and, in that case, the State receiving the request is required to comply as long as this does not conflict with the fundamental principles of the national legal system (art. 13, letter e).
As far as the area of application of the warrant is concerned, that corresponds, as we have already observed, with what our Code defines as "activities of evidentiary acquisition" (art. 723, c.p.p.), while article 23 of the proposal establishes that the framework decision will replace the corresponding rules of the Convention on the issue of judicial assistance in force between Member States.
However, the project seems destined to assume a significance that goes beyond the limited context of the acquisition of pre-established or pre-existing evidence. It would not be unreasonable to hold that, in future, it may represent the legal basis for cooperation between Member States on the pursuit and acquisition of any evidence. For this reason we may find ourselves looking at an epoch-making event: the phenomenon of evidentiary circulation in the strict sense seems destined to disappear, as far as the hopes expressed in the explanatory document of the project, according to which the warrant represents . Such a demanding/binding objective, moreover, should not make us lose sight of the need to combine the need for efficiency with the need to guarantee legal rights and protection: besides, the European Parliament has recently been concerned to draw up, at high speed, a proposal that satisfies (see the Documento di lavoro sulla decisione quadro del Consiglio in materia di determinati diritti processuali in procedimenti penali sul territorio dell'Unione europea, COM(2004)0328-C6-0071/2004-2004/0113(CNS)).

From this point of view, the Research Unit will have to work to identify those guarantees which in any case must accompany the process of the reform of penal cooperation between Member States, identifying interesting issues for study from, among others, some remarks – albeit in nuce – in the Libro Verde sulle garanzie procedurali a favore di indagati e imputati in procedimenti penali (COM(2003)75 definitive), and taking as a fixed point of reference the jurisprudence concerning "fair trial" of the European Court of Human Rights.