Critical issues in the new EU regulation on electronic evidence in criminal proceedings

• Autores: Pavlos G. Topalnakos
• Localización: Eucrim: the European Criminal Law Associations' fórum, ISSN 1862-6947, Nº. 2, 2023 (Ejemplar dedicado a: Electronic evidence), págs. 200-203
• Idioma: inglés
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• Resumen

  • The new EU Regulation on electronic evidence in criminal proceedings not only aims to enhance cross-border access to electronic evidence but also raises concerns regarding privacy, fundamental rights, and accountability. This article focuses on three key issues.

    First, it is argued that the establishment of a direct cooperation framework between the issuing state and private service providers regarding data of citizens from other Member States reinterprets Art. 82 TFEU and circumvents the traditional review and scrutiny by the judicial authorities of the enforcing state, compromising transparency and individual rights.

    Second, the rules in the Regulation that eliminate the requirement of dual criminality for certain categories of electronic evidence potentially lead to the collection of data for conducts that may not be criminalized in the enforcing state. In addition, the absence of the principle of speciality allows for the unintended use of evidence acquired through cooperation.

    Third, the individuals' rights to privacy and data protection are potentially violated, given that European Preservation Orders fall outside the scope of legal remedies. Moreover, the lack of explicit provisions for legal protection within the enforcing state raises concerns about the effectiveness of the remedies.

    The author stresses the need to strike a balance between deepening cooperation and safeguarding fundamental freedoms. He calls for reforms to ensure robust mechanisms for contesting the legality and necessity of measures, as well as clear provisions for legal protection within the enforcing state, so that a rights-based approach within the European system established by the Regulation can be achieved.