European Integration - Realities and Perspectives. Proceedings 2015
Limits of Evidence within EU
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: firstname.lastname@example.org.