Limits of Evidence within EU

• Author: Monica Pocora
• Pages: 136-140

European Integration - Realities and Perspectives. Proceedings 2015

136

Limits of Evidence within EU

Monica Pocora1

Abstract: The issue of admissibility of evidence has been regulated only very scarcely in the EU. Judicial

cooperation in criminal matters has been embracing the increasing number of instruments, covering plethora

of aspects, however, the field of admissibility of evidence remains almost untouched. Can the Area of

Freedom, Security and Justice be called the Common Evidence Area? From the national perspective, the issue

of admissibility of evidence is still subject to divergent solutions in the Member States, concern ing the

common law and continental law systems, i.e. the right of access to a lawyer. Thus, the paper aims to take

into account the tendencies of legal rule in matter of admissibility of evidence, the dynamic of evidence

movement within EU area.

Keywords: EPPO; testimony; prejudice; admissibility; gathering

1. Mutual Recognition

When the principle of mutual recognition concerns different types of decisions, rendered on all stages

of the proceedings, the legal gap in the field of admissibility of evidence gives rise to concern insofar

as no principles are established with regard to their transfer between the Member States. This has

provoked commentaries about a possibility of “free movement of evidence” whereby evidence

gathered could circulate without barriers between the Member States. In an extreme case, an

obligation to recognize all evidence gathered abroad could lead to a situation of forum-shopping, i.e.

evidence would be collected a country where most liberal evidential rules are applied and then

transferred to another one where it would need to be recognized.

The issue of admissibility of evidence is subject to divergent solutions in the Member States. The two

opposite models may be attributed common law and continental law systems. The common law

system is attached to a fairly strict system of admissibility of evidence. This is often linked to the fact

that non-professionals sitting in a jury remain key actors in the judicial process, hence the need to

provide them with a clear framework for their decision through introduction of a set of rules on

admissibility of evidence and, thus, avoid a distortion of justice which set a clearer framework for the

decision of the jury. The specificities of the common law system include limitations in hearsay

evidence; limitations in testimonies of anonymous witnesses, limitations in scope of persons entitled to

refuse to testify (not all closest persons are protected); specific position of accused persons (who

testifies under oath unlike in continental law systems where no legal consequences are attached to

1 Senior Lecturer, PhD, “Danubius” University of Galati, Romania, Address: 3 Galati Boulevard, 800654 Galati, Romania,

Tel.: +40.372.361.102, fax: +40.372.361.290, Corresponding author: monicapocora@univ-danubius.ro.