Admissibility of Evidence in Criminal Proceedings in the EU

• Date: 02 February 2021
• Year: 2021
• Author: Balázs Garamvölgyi,Prof. Dr. Katalin Ligeti,Dr. Anna Ondrejová,Dr. Margarete von Galen
• Pages: 47
• DOI: https://doi.org/10.30709/eucrim-2020-016

I. The Problems of Cross-Border Evidence and EU Initiatives to Resolve them

With the increase in volume and importance of cross-border investigations in the EU, ensuring the admissibility of evidence gathered in another Member State at trial has become crucial, both for efficient law enforcement and for the protection of fundamental rights. National prosecution authorities often investigate offences where a part of the evidence is located abroad (the witness is abroad, the offence was committed by passing through foreign territory, the offender moved across borders, or the offence was committed in a digital environment, etc). In accordance with Art. 6 of the European Convention on Human Rights (ECHR) and Arts. 47 and 48 Charter of Fundamental Rights of the European Union (CFR), it must be ensured that evidence gathered in cross-border investigations does not lead to its unlawful or unfair use. Providing for both efficiency and fundamental rights protection in transnational cases is demanding, however, since each Member State has its own rules on investigative measures and the exclusion of evidence. To illustrate the case, it is useful to refer to the following example from daily practice:

The Czech prosecution service asks the Hungarian authorities to carry out a search of a private home in Hungary. Although the search of a private home requires a court order according to Czech law,¹ such a search does not require any judicial permission in Hungary − the investigating authority can decide on it alone. In order to ensure that the evidence collected during the search in Hungary can be admitted at trial in the Czech court, the Hungarian executing authority could ask for a court warrant from a Hungarian judge – in accordance with the forum regit actum principle.² In practice, this does not happen, as the otherwise overburdened Hungarian judges do not see any reason to issue a warrant for a search.³ Consequently, the Hungarian authorities carry out the search without a court order and transmit the evidence to the Czech authorities. It is up to the Czech court to decide on the admissibility of the evidence that was lawfully obtained in Hungary but in violation of the Czech rules of criminal procedure.

With a view to the potential repercussions of divergent national rules on the admissibility of evidence in cross-border cases, the EU already proclaimed in the Tampere Programme that ensuring the admissibility of evidence is fundamental to the creation of an Area of Freedom, Security and Justice (AFSJ). The Tampere Programme states accordingly:

“The principle of mutual recognition should also apply to pre-trial orders, in particular to those which would enable competent authorities quickly to secure evidence and to seize assets which are easily movable; evidence lawfully gathered by one Member State’s authorities should be admissible before the courts of other Member States, taking into account the standards that apply there.”⁴

In response to the EU’s policy agenda, both academic studies⁵ and practitioners⁶ have examined to which extent the divergent national rules on admissibility and exclusion of evidence pose a problem as to whether or not to use evidence obtained through legal assistance at trial. All these studies acknowledge that the national laws of criminal procedure of the Member States attach differing consequence as to the unlawful gathering and/or use of evidence and that several national laws do not contain any specific rules at all as to where the evidence was obtained (i.e., no special rules for evidence obtained abroad).

The resulting problems and the appropriate measures to resolve them, however, are assessed differently. Starting from the idea of mutual trust and adequate protection of fundamental rights across the EU, some argue in favour of using the lex loci for the collection of evidence requested by another Member State in combination with a harmonised set of rules on exclusion. The exclusionary rules are a logical corollary of the EU directives on the rights of the defendants: in order to make these rights effective, they should be accompanied by a rule that evidence obtained in breach of them is inadmissible. Conversely, other authors argue that the lack of national rules on admissibility of foreign evidence attest to the fact that Member States attach the same value to evidence obtained “domestically” as to that obtained via legal assistance, making the free movement of evidence possible in the future. Instead of common EU rules on exclusion, the rules governing exclusion according to the law of the Member State in which the evidence was obtained (lex loci) should be sufficient. Accordingly, instead of imposing exclusionary rules, some authors make the case for imposing inclusionary ones. Yet again, instead of exclusionary or inclusionary rules, others claim that a future EU instrument on evidence gathering should prescribe a set of “standard packages” for help in evidence-gathering, setting out the measures that national authorities and/or the defence could require the authorities in other Member States to carry out for them.⁷

This short – and non-exhaustive – panorama already reveals that the EU could theoretically choose between a more ambitious agenda of harmonisation of national rules on investigative measures, on the one hand, and prescribing either a rule of inclusion or a rule of exclusion for evidence obtained in another Member State, on the other. The exact design of any of the two options and their respective impact on national criminal procedure depends on the concrete choices that the EU legislator takes (whether a narrower or larger set of investigative measures would apply in case of approximation; whether they would be available to the prosecution only or also to the defence and, in case of inclusion or exclusionary rules, whether they apply to cross-border cases only or also to domestic cases; whether exclusion is linked to violation of the EU defence rights acquis, etc.).

The Lisbon Treaty gave new impetus for launching EU legislation on the admissibility of evidence. Art. 82(2) TFEU explicitly refers to the possibility to propose legislation on the mutual admissibility of evidence. The Stockholm Programme implementing the Lisbon Treaty confirmed the view of the European Council

“that the setting up of a comprehensive system for obtaining evidence in cases with a cross-border dimension, based on the principle of mutual recognition, should be further pursued. The existing instruments in this area constitute a fragmentary regime. A new approach is needed, based on the principle of mutual recognition but also taking into account the flexibility of the traditional system of mutual legal assistance. This new model could have a broader scope and should cover as many types of evidence as possible, taking account of the measures concerned.”⁸

The Council invited the Commission to propose a new legal instrument. In response, the Commission published a Green Paper in 2009⁹ outlining its aim to adopt an instrument that would (i) set up a scheme of mutual recognition to govern cross-border evidence-gathering¹⁰ and (ii) create a regime of mutual admissibility of evidence. As the Commission stated in the Green Paper, there is “a risk that the existing rules on obtaining evidence in criminal matters [can] only function effectively between Member States with similar national standards for gathering evidence. [… Therefore,] the best solution to this problem would seem to lie in the adoption of common standards for gathering evidence in criminal matters.”¹¹ Shortly afterwards, the text for a Proposal for a Directive regarding the European Investigation Order in criminal matters was tabled,¹² albeit seeking to implement only the first aim specified in the Green Paper and leaving untouched the more controversial issue of common rules on admissibility of evidence in the EU.¹³ This reflected the view of the majority of Member States, according to which proposing common rules for the admissibility of evidence would violate the principles of subsidiarity and proportionality.¹⁴

The rather reserved view of the Member States was once again confirmed during negotiations on the defence rights directives. In particular, the Commission’s original proposal for a directive on the presumption of innocence¹⁵ stipulated in Art. 6(4) that any evidence obtained in breach of the right not to incriminate oneself and not to cooperate shall not be admissible, unless the use of such evidence would not prejudice the overall fairness of the proceedings. This exclusionary rule disappeared, however, during the negotiations and did not find its way back into the final text of the directive.

All this leads to a situation in which the rules on the collection, use, and admissibility of evidence are still left to the laws of national criminal procedure only. The resistance of the Member States is certainly the main reason why the Commission has not yet made use of the competence provided for in Art. 82(2) TFEU.¹⁶ The recent negotiations on the Regulation on the European Public Prosecutor’s Office (EPPO) unequivocally demonstrated how far Member States are ready to go when it comes to the approximation of criminal procedure. Member States clearly refused to agree on rules for the gathering and admissibility of evidence in EPPO investigations.¹⁷ For a future proposal based on Art. 82(2) TFEU, the Commission has to convince not only the Member States, but it must ensure that any proposal on this matter is compliant with the principles of subsidiarity (Art. 5(3) TEU) and proportionality (Art. 5(4) TEU). The Proposal for the EPPO Regulation is a recent example of challenging the Commission’s competence based on subsidiarity.¹⁸ In this case, even if the subsidiarity challenge was not successful in legal terms (i.e., the Commission decided to maintain its proposal in its entirety), it came with a high...