Dokazivanje u praksi Evropskog suda za ljudska prava
Authors: Etinski Rodoljub 
Published: February 2025

Evidence comes into play in the practice of the European Court of Human Rights in two situations: a) when the Court itself needs to establish facts, and b) when it is called upon to assess whether the establishment of facts by the national court has been done in accordance with the rights and freedoms guaranteed by the European Convention on Human Rights, primarily the right to a fair trial. The Court has transplanted some general standards regarding evidence from national legal systems, such as affirmanti incumbit probation and the establishment of facts beyond reasonable doubt, and has further developed and adapted these standards to the subject matter it deals with, namely the protection of human rights, i.e. the responsibility of a Contracting State for violation of an obligation established by the Convention. These general standards were adopted at a time when the European supervisory mechanism consisted of two bodies: the European Commission of Human Rights and the European Court of Human Rights, before Protocol No. 11 to the Convention entered into force in 1998, when the Commission was abolished. The issue of establishing facts was primarily within the competence of the Commission, so it adopted basic standards, which were later accepted by the Court despite objections from some States. In its judgment of 1978 in the case of Ireland v. United Kingdom, the Court laid down fundamental rules regarding the gathering and assessment of evidence, which it would further develop and modify in subsequent cases. The Court sees itself as the master of its procedure and its rules, and that it has complete freedom to assess not only the admissibility and relevance of evidence, but also the probative value of each piece of evidence. This does not imply arbitrariness in terms of evidence. The nature of the rights guaranteed by the Convention, the nature of the allegations to be proven, and the nature of the circumstances in relation to which facts need to be proven are factors that the Court takes into account when determining which party bears the burden of proof and which standard of proof it will apply. The Court mostly applies the standard of “beyond reasonable doubt”, but always adds that “such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact”. The standard of “beyond reasonable doubt”, as applied by the Court, differs from that standard as applied by national courts in criminal proceedings. The Court has not defined the standard of “beyond reasonable doubt”, except that the Commission in the Greek case defined “reasonable doubt” as doubt for which reasons may arise from the presented facts. If the facts on which the Court is required to apply the Convention are already established by the domestic court of the respondent State, the findings of the domestic court on the facts are not binding on the Court, but it will not deviate from them unless there are compelling reasons to do so. The European Court of Human Rights is not a court of fourth instance, and in principle, it does not deal with issues of admissibility and evaluation of evidence in national judicial proceedings. However, it will deal with these issues in exceptional cases, if the findings and conclusions of the national court are evidently arbitrary, thus contrary to justice and fairness. Article 6 of the Convention guarantees the right to a fair trial, which includes certain evidential matters. According to the Court’s interpretation, Article 6 requires that a party may present to the national court evidence it considers relevant, that it may present its position on the evidence of the other party, and that the court hears and examines all evidence that is objectively relevant to the subject matter of the dispute. Thus, it requires that the procedure as a whole must be fair.