The Structure of Evidentiary Proceedings As Reflected in the Case-Law of the ECtHR on Article 6 (3) ECHR

Abstract

On the background of new forms of national and international crime and the complex problems of transnational criminal justice, the reform of criminal procedure emerges as a legal policy challenge in many contemporary European legal orders, regardless of their particular legal traditions and cultures. Today, even time‐honoured procedural structures (such as those based on the obligatory judicial search for the truth in Germany) and institutions (like the jury trial in England) are under constant scrutiny as to their effectiveness in solving modern conflicts of penal character. In this context, and for the purpose of searching for new (alternative) procedural forms, comparative research is an important tool for the analysis of legal rules and institutions. Fragmentary solutions and arbitrary legal transplantations do not provide a coherent basis for reform. Any meaningful implementation of elements of foreign legal systems at the national level and the smooth realization of the objectives of transnational, supranational, and international criminal justice call for a reciprocal understanding between legal orders of different traditions in terms of their normative foundations. In the field of criminal procedure, the various structures employed by national and international legal systems for the purpose of effective fact‐finding in criminal trials are of diachronic importance for comparative research. Within this context, legal comparison aims to identify systemic convergences and divergences and, ultimately, to advance a proposal of best practices and balanced solutions. Furthermore, the examination of provisions of international and supranational origin is useful for devising system‐wide strategies for optimizing the national criminal process. Key in this respect are the principles, rules, and normative minimum standards of the European Convention on Human Rights (ECHR) as interpreted and implemented in the case‐law of the European Court of Human Rights (ECtHR), particularly for the Member States of the Council of Europe. The autonomous international “legal order” of the ECHR is often thought to provide Member States with a sui generis procedural model consisting of independent standards and guidelines. The present paper explores the erga omnes4 obligations arising from human rights principles and procedural guidelines as provided in the ECtHR decisions with potential impact on (re‐)shaping the evidentiary structures of the criminal trial in Council of Europe countries. The analysis is based on abstract concepts and definitions used by the ECtHR in interpreting art. 6 ECHR, without specifically referencing their implementation in national legal systems. Particular emphasis is placed on the guarantees of an effective defence, the disclosure of evidence, the calling of witnesses, and the right to confrontation. The paper addresses the overarching question as to whether or not, at the international level, the ECHR system sets specific procedural standards regarding the form of evidentiary proceedings, which national criminal justice systems must comply with.

Keywords: criminal law, criminal justice, comparative criminal law, European Convention on Human Rights, European Court of Human Rights, law of evidence, evidentiary structures, adversarial procedure, inquisitorial procedure, overall fairness, right to confrontation