Abstract
In the new European regulatory framework aimed at jurisdictionalizing mutual recognition procedures and introducing simplified relationships, the goal of the mutual admissibility of evidence should characterize the trial stage in the strict sense but also the pre-trial stage. We are looking for “minimal rules for a statute on means of gathering evidence”.
The object of this study is a means of gathering evidence that has great potential to harm the private sphere: telecommunications interceptions. The regulation of this tool is to be found in Articles 27b et seqq. PD EIO, but is a source of some considerable perplexity. Firstly, there are questions as to whether the rights violated by the use of the aforementioned instrument fall within the rights disciplined in Article 17 PD EIO and what prevails in the balance between legal truth and right of defence. Moreover, some procedural doubts arise about who is the actively legitimate subject, as well as some terminological doubts, on the meaning of “relevance,” and some practical ones, if the high costs involved are included in the reasons for refusal.
The present paper aims at a survey of the system in the PD EIO, highlighting obscure points and regulatory gaps. Finally, taking into account the fragmentation of legal rules, we try to provide an exegetical aid to operators called to move within the complex rules, with regard to the solution of application problems.
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Notes
- 1.
Chiavario (2005), pp. 974ff.
- 2.
See, among others, Furgiuele (2012), p. 242. Cf. also Ruggeri (2013), pp. 299ff., who underlines that in all adversarial systems evidence is always a legal construction and the distinction between the evidence that, although directly available, does not already exist and the evidence that, although already existing, is not directly available without further investigation or examination appears, according to the Author, somewhat questionable. In neither case will evidence in itself be available and exist from a legal viewpoint and in both cases it will result only from procedural activity.
- 3.
De Amicis (2011).
- 4.
See, among others, ECJ, 2 August 1984, Malone v United Kingdom, Series A, No. 82, 7 EHRR (1985), par. 66 and ECJ, 10 March 2009, Bykov v Russia, no. 4378/02.
- 5.
Troisi (2012), p. 154.
- 6.
Note that in the effectiveness of the investigation of the trial the oral tradition of evidence is stifled. An example is the crystallization of the extensive investigative results in the trials of organized crime harnessed by the dense network of interceptions, with the consequent transformation of the oral examination into the “recitation of a script” of the conversations intercepted.
- 7.
See, among others, Directive 2010/64/EU of 20 October 2010 on the right to interpretation and translation in criminal proceedings; Directive 2012/13/UE on the right to information in criminal proceedings; proposal for a Directive on the right of access to a lawyer in criminal proceedings and the right to communicate upon arrest [COM (2011) 326].
- 8.
See Vogel (2004), as quoted as Vervaele (2005).
- 9.
Cfr. ex plurimis Constitutional Court, Judgement 184/2009, which underlines the asymmetry between the public prosecutor’s position and that of the accused, with the consequent creation of imbalance.
- 10.
Amodio (2012).
- 11.
Ibid.
- 12.
See ex multis Court of Cassation, Section VI, Decision of 12 February 2009, no. 12722.
- 13.
See ex plurimis Court of Cassation, Section IV, Decision of 17 October 2006, no. 42017.
- 14.
See, among others, Court of Cassation, Section V, Decision of 10 February 2011, no. 4951.
- 15.
Backmaier Winter (2010), p. 589.
- 16.
The Working Party on Cooperation in criminal matters met on 11 and 12 January 2011 and continued the examination of the initiative for a Directive on the European Investigation Order. See Doc. 5591/11 COPEN 10, EJN 5, EUROJUST 9, CODEC 91.
- 17.
Accompanying Document to the Proposal for a Council Directive regarding an European Investigation Order in criminal matters, Detailed Statement, 9288/10 ADD 2, COPEN 117, EJN 13, CODEC 384, EUROJUST 49, § 2.3.
- 18.
Pisani (2011), p. 70.
- 19.
Rodotà (1997), p. 470.
- 20.
See, among others, Allegrezza (2010), pp. 61ff.
- 21.
The principle of mutual recognition of decisions in criminal matters, in particular in its aspirations for a European transfer of evidence by using the “admissibility of evidence throughout Europe”, is obviously modelled on the rules of the free movement of citizens. However, the principle of the free movement of goods and services cannot plainly be applied to the area of intergovernmental transfer of evidence, because the “import” of evidence touches the rights of the accused in a fundamental way. See Hecker (2013), p. 276.
- 22.
For further details see Ruggeri (2013), pp. 287ff.
- 23.
In this sense Hecker (2010), § 12 para. 65ff.
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Arasi, S. (2014). The EIO Proposal and the Rules on Interception of Telecommunications. In: Ruggeri, S. (eds) Transnational Evidence and Multicultural Inquiries in Europe. Springer, Cham. https://doi.org/10.1007/978-3-319-02570-4_11
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