Critical Remarks on the Green Paper on Obtaining Evidence in Criminal Matters from one Member State to another and Securing its Admissibility

Facilitating the exchange of evidence is at present one of the priorities of the EU action in criminal matters. Less than one year after the adoption of the Framework decision on the EEW, the Commission presents a new Green Paper proposing a general instrument based on mutual recognition available for all means of evidence. This essay discusses the pros and cons of the green paper suggestions. It first criticizes the method employed by the Commission to submit a proposal without having conducted an accurate reflection and without relying on empirical studies. A second reason of criticism concerns the Commission’s attempt to transplant in criminal matters the principles and the techniques which developed in the (former) first pillar of the EU without taking into account the peculiar sensitivity of criminal law. In this respect the proposal of the Commission hides behind some “false miths” such as the “healing” work of the ECtHR and it does not adequately consider the problems that lurk under the differ- ences in the rules between national legal systems. No consid- eration is given to safeguards and to the need of protecting human rights within criminal proceedings. After showing all the weaknesses of a purely efficient and punitive approach this article aims at redressing such imbal- ance by suggesting to provide for adequate safeguards and by proposing to start discussing of a possible harmonization. The essay maintains also that the present European trend implicitly favors those systems rooted in an inquisito- rial/continental traditional procedure to become the “com- mon standard” for a future model of European criminal jus- tice. And it suggests that before advancing proposals it would be sensible to discuss openly the concrete perspectives of harmonization.