The European Commission’s e-Evidence Proposal – Critical Remarks and Proposals for Changes
The incredibly dynamic technological development is also accompanied by cross-border criminal activity. In order to seize a perpetrator and to prove his guilt, it is necessary to gather electronic evidence. There is a model followed in obtaining e-evidence that as a general rule data stored by electronic service providers in a given state are made available to law enforcement authorities in that state.
In response to the current problems, a Proposal of 17 April 2018 was drafted COM(2018) 225 final, 2018/0108 (COD), for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters.
The purpose of the Proposal is to introduce solutions which will allow addressing an order to provide electronic evidence directly to a service provider in another country without the mediation of law enforcement or judicial authorities in the country where the service provider is based. The Proposal provides for two new instruments: a European Production Order and a European Preservation Order. Both cases concern the production or preservation of electronic evidence for the needs of pending criminal proceedings.
The Proposal contains a number of new and controversial solutions. The most significant issues concern, for instance: defining a body competent to issue the European Production Order, i.e. whether it is only a court or also a prosecutor that are authorised to issue such order; as well as determining for which types of electronic evidence those bodies will be authorised to issue the European Production Order.
M. Rogalski, The European Commission’s e-Evidence Proposal – Critical Remarks and Proposals for Changes, European Journal of Crime, Criminal Law and Criminal Justice 2020, vol. 28, issue 4, pp. 333-353.