Prueba, estándares y cargas de la prueba en el sistema de protección europeo: ¿un nuevo campo para teóricos de la prueba?

• Author: Elena Marchese
• Position: Research fellow at Bocconi University
• Pages: 103-129

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio / International Journal on Evidential Legal Reasoning

Año 2022 N. 3 pp. 103-129 DOI: 10.33115/udg_bib/qf.i3.22737

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio

Quaestio facti. International Journal on Evidential Legal Reasoning

Sección: Ensayos

N. 3 | 2022 pp. 103-129

Madrid, 2022

DOI: 10.33115/udg_bib/qf.i3.22737

© Marcial Pons Ediciones Jurídicas y Sociales

© Elena Marchese

ISSN: 2604-6202

Recibido: 28/12/2021 | Aceptado: 27/01/2022 | Publicado: 31/01/2022

Editado bajo licencia Reconocimiento 4.0 Internacional de Creative Commons

EVIDENCE, STANDARDS AND BURDENS OF PROOF

IN THE EUROPEAN ASYLUM SYSTEM:

A NEW FIELD FOR EVIDENCE SCHOLARS?

Elena Marchese

Research fellow at Bocconi University

elena.marchese@unibocconi.it

ABSTRACT: is article presents the main evidential features implied in the European Union direc-

tives and case law regarding the recognition of refugee status. It focuses, rst, on the challenges

posed to judicial decision making by the absence of a unitarian European proof system, by the

signicant lack of evidence in the relevant judgments, and by the conicting interests at stake.

e text highlights, then, the «subjective» connotation of international protection evidence and

inserts it into the debate on the standards of proof which characterizes the reections of some legal

philosophers.

KEYWORDS: evidence; asylum; standard of proof; CEAS; UNHCR.

SUMMARY: 1. INTRODUCTION.— 2. THE NOTION OF EVIDENCE.— 3. THE THEMA

PROBANDUM: 3.1. Evaluation of evidence. 3.2. Burdens of proof. 3.3. e standards of proof.

3.4. On the objectivity. 3.5. Standards as tools of evidential policy.— 4. THE CREDIBILITY

OF THE APPLICANT AND THE RELIABILITY OF THE APPLICATION: 4.1. Credibility

indicators. 4.2. Credibility: special cases.— 5. CONCLUSIONS.— BIBLIOGRAPHY

RECOMMENDED CITATION: ELENA MARCHESE, 2022: «Evidence, Standards and Burdens of

Proof in the European Asylum System: a New Field for Evidence Scholars?», in Quaestio facti, 3:

103-129. Madrid: Marcial Pons Ediciones Jurídicas y Sociales. DOI: http://dx.doi.org/10.33115/

udg_bib/qf.i3.22737

104 ELENA MARCHESE

Quaestio facti. Revista Internacional sobre Razonamiento Probatorio / International Journal on Evidential Legal Reasoning

Año 2022 N. 3 pp. 103-129 DOI: 10.33115/udg_bib/qf.i3.22737

1. INTRODUCTION

One of the contexts to which legal epistemologist and evidence experts seem to

have still paid little attention is that concerning the study of the evidential activities

involved in the procedure for the attribution of refugee status.

ere are four orders of reasons that make the study of the probative issues in this

area particularly stimulating and make this assessment remarkably complex: 1) the

plurality of the regulatory levels involved (European legislation and national systems;

administrative and judicial jurisdiction) 1; 2) the peculiar condition of evidence scar-

city on the basis of which judicial bodies have to decide in this sector, 3) the subjec-

tive characterization of evidence and probative instruments; 4) the humanitarian and

political reasons that inform such practices.

Given the purposes of this work, I will be able to concentrate only on the third of

these reasons, leaving the others to subsequent works. First, I will attempt to provide

a synthetic picture of European secondary law and literature produced by the Euro-

pean Asylum Support Oce (EASO) and the United Nations High Commissioner

for Refugees (UNHCR) and, subsequently, I will focus on one of the debates that, in

recent years, has gained great fortune among legal philosophers and which concerns

the preferability, possibility and necessity to conceive the evidential activity in more

objective terms in order to allow a better ex post control of decisions. e eld seems

relevant not only for the importance of the epistemological, political and legal chal-

lenges posed by the context of analysis to the European Union and to the evidence

scholars, but also because it can oer new tools for the reection of the legal philoso-

phers engaged in the growing disagreement regarding which conception of evidence

and proof is more suitable for the legal domain, and regarding the formulation of

standards of proof.

2. THE NOTION OF EVIDENCE

ere is no general or unambiguous denition of evidence in EU law. Article 4 of

the 2011 Qualication Directive, entitled Assessment of Facts and Circumstances,

1 In Italy, for example, there is a two-level system: the rst is of an administrative nature and the

second of a judicial nature. In the rst level, the examination of the applications is carried out by the

so-called Territorial Commissions. ey are made up of a college of four members (the president of

the Commission, a commissioner designated by UNHCR and two ocials from the Ministry of the

Interior one of whom is the person conducting the interview). e second level, on the other hand, has

a judicial nature and is the remedy granted by our legal system against the decisions of the Territorial

Commission. e appeal can be proposed before the specialized Section of the Court of Appeal. Depen-

ding on the case, the appeal must be lodged within thirty or fteen days of the Commission’s decision.

e procedure is handled by the college in the council chamber.