Abstract
A single European area of freedom, security and justice requires new models of judicial cooperation in criminal matters to be put in place in order to efficiently combat transnational organized crime. However, this should not be done while disregarding the protection of the individual rights of the suspect and the accused: a transnational criminal procedure should not entail a lowering of the procedural safeguards identified by the European Court of Human Rights. The tension between the efficiency in the cooperation and the need to protect the fundamental rights of the defendant is particularly visible in matters of the transnational gathering of evidence, its transfer and its admissibility as evidence against the accused. This paper intends to identify general principles and rules that should be applied in European transnational criminal proceedings with regard to witness evidence. Departing from the ECHR’s case law, this paper will try to identify the principles regarding the hearing of witnesses who reside in another Member State, the admissibility of pre-trial statements as evidence and the need to foster the use of the live video link for witness questioning.
Highlights
The problems related to international judicial cooperation are not new
Every criminal proceeding requiring cooperation by the authorities of another state represents a challenge: added complexity, probable delays, difficulties in communicating in another language, explaining what exactly is required for the criminal investigation and, above all, the differences which exist between the different legal systems involved in the judicial cooperation
The efforts made to simplify and speed up international cooperation have traditionally resulted in mutual legal assistance conventions, either bilateral or multilateral, and more recently in the European Union (EU) in legal cooperation instruments based on the principle of mutual recognition
Summary
Every criminal proceeding requiring cooperation by the authorities of another state represents a challenge: added complexity, probable delays, difficulties in communicating in another language, explaining what exactly is required for the criminal investigation and, above all, the differences which exist between the different legal systems involved in the judicial cooperation All these issues are well known and have often been dealt with by scholars and practitioners.[1] The efforts made to simplify and speed up international cooperation have traditionally resulted in mutual legal assistance conventions, either bilateral or multilateral, and more recently in the European Union (EU) in legal cooperation instruments based on the principle of mutual recognition. Before we concentrate on this topic, it is worth clarifying the concept of transnational criminal proceedings as it will be used here
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