Eucrim. European Law Forum: Prevention. Investigation. Prosecution

Publisher:: European Anti-Fraud Office
Publication date:: 2023-11-15

ISBN:: 1862-6947

Issue Number

Latest documents

Preuves électroniques : état de la situation en Suisse face à l’avancée majeure du droit européen
This contribution is a comparison of the solution adopted in the European Union (EU) concerning cross-border access to electronic evidence and the Swiss law applicable in this area, based on a number of key features of the European system. It gives rise to a reflection on the prospects for relations between the European Union and Switzerland, in particular the opportunity for Switzerland to coordinate its rules with those of European law.
Mutual Admissibility of Evidence and Electronic Evidence in the EU A New Try for European Minimum Rules in Criminal Proceedings?
This article seeks to provide arguments in support of legislative action on mutual admissibility of evidence and electronic evidence in criminal proceedings at the EU level. To this end, it will first describe the status quo and then the main features of a corresponding proposal recently tabled by the European Law Institute. In the light of this proposal, the author explains why Member States should reconsider their traditional stance against any EU initiative on evidentiary rules in criminal proceedings. Ultimately, especially in this new digital era, the best solution to prevent the inadmissibility of cross-border evidence is to adopt a set of minimum rules.
Gathering Electronic Evidence for Administrative Investigations Exploring an Under-the-Radar Area
The intense debate over the past few years on access to data for criminal investigations has led to the adoption of the E-evidence package. Yet, electronic evidence is no less crucial for punitive administrative proceedings. One administrative investigation authority that could benefit from more extensive access to electronic evidence is OLAF, which, at this point, does not seem to have the power to request data from service providers. Such powers could be essential, however, for the detection and investigation of fraud or corruption. This article argues the need for a general and thorough reflection on access to electronic evidence from Internet Service Providers (ISPs) in administrative punitive proceedings. It also discusses the transfer of this type of evidence between administrative and criminal proceedings (in both directions) in order to more specifically justify an extension of OLAF’s powers to be able to request such evidence.
The Use of Electronic Evidence in the European Area of Freedom, Security, and Justice An Introduction to the New EU Package on E-evidence
Digital technologies have advanced more rapidly than any other innovation in modern history and they permeate our daily lives. The benefits to our societies and economies are numerous, but the risks of cyberattacks and crime have also increased. The EU is committed to protecting its citizens against these risks in the Area of Freedom, Security and Justice. Prevention, detection, and enforcement form key components of the EU’s security architecture. Making use of the benefits of digital technologies and ensuring a high level of security across the Union were driving forces behind the latest building block in this architecture: the e-evidence package. Recently adopted, it aims to ensure that judicial and law enforcement authorities can obtain electronic evidence across the EU and beyond in a swift and legally sound manner for the purpose of investigations and prosecutions in criminal cases. This article provides an introduction to the two new EU instruments: the Regulation on European Production/Preservation Orders and the Directive on the designation of designated establishments and the appointment of legal representatives. The authors outline the key elements of this new set of rules and illustrate their implications for stakeholders. Furthermore, the borderless and open character of digital technology also makes it imperative to analyse existing and potential new international agreements in this field, since they will have an impact on the effectiveness of the enacted EU e-evidence package. The article concludes that the adoption of the EU e-evidence rules is an important step in the joint efforts to fight crime effectively. Fundamentally relying on the principle of mutual trust among the EU Member States and a presumption of their compliance with Union law, the rule of law, and fundamental rights and values, the application of the e-evidence package will nonetheless require constant scrutiny, monitoring, and cooperation between all actors involved.
The E-evidence Package The Happy Ending of a Long Negotiation Saga
The following article gives an overview of the long internal negotiations on the EU legal instruments aiming at improving cross-border access to e-evidence in judicial proceedings (the so-called e-evidence package), which have finally been concluded. It outlines the main challenges met during the negotiations and how they were overcome to reach a compromise which has become subject to political agreement. This compromise is expected to prove more useful from a practical point of view than previous, more general cooperation tools. In addition, the article puts the EU’s legislative initiative into the context of legal instruments and negotiations on law enforcement access to e-evidence at the international level before turning to expected future developments.
Remote Biometric Identification and Emotion Recognition in the Context of Law Enforcement From the AI Regulation Proposed by the Commission to the EU Co-Legislators’ Positions
In April 2021, the European Commission put forward a proposal for a Regulation to harmonise rules on artificial intelligence (AI) across the EU, including AI in the context of law enforcement. Its horizontal character raised concerns in the police community, prompting a response by some Member States arguing for a separate legal act on the use of AI by law enforcement agencies. Two controversial components that have drawn the attention of the Council of the EU and the European Parliament are remote biometric identification and emotion recognition technologies. While the Council’s general approach aligns with the Commission’s proposal to balance law enforcement and human rights protection, the European Parliament pursues a narrower approach, advocating for the prohibition of real-time remote biometric recognition and emotion inference applications. It goes without saying that the outcome of the ongoing inter-institutional negotiations (trilogue) between the EU co-legislators and the Commission is being anticipated by law enforcement bodies with considerable interest. After all, this will define how the opportunities provided by AI are leveraged in law enforcement settings as well as how to deal with the misuse of this evolving technology by terrorists and criminals. This article reports on the institutions’ positions on remote biometric identification and emotion recognition and highlights the – in the authors’ view – flawed approach by the European Parliament toward law enforcement.
Critical Issues in the New EU Regulation on Electronic Evidence in Criminal Proceedings
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.
Electronic Evidence Collection in Cases of the European Public Prosecutor’s Office Legal Framework, Procedures, and Specifics
Electronic evidence (e-evidence) is necessary and relevant with regard to many cases of serious, organised, or cross-border crime. This is also true for cases investigated by the European Public Prosecutor’s Office (EPPO). This article outlines the current legal framework, procedures, and mechanisms available to the EPPO for the collection of e-evidence in different case scenarios. It also takes into account the requirements for the protection of personal data, in particular arising in the transfer of operational data to authorities and private parties in third countries.
Die Regulierung des (grenzüberschreitenden) Zugangs zu elektronischen Beweismitteln Aktuelle nationale, europa- und völkerrechtliche Entwicklungen
This article provides an overview of current national, European, and international legal efforts to regulate cross-border access to electronic evidence. At the level of the EU, it was recently decided to harmonise the legal systems of the Member States by means of regulations and directives, which is to be flanked by an agreement between the EU and the USA in the future. In addition, there are already agreements under international law, such as the Second Additional Protocol to the Convention on Cybercrime (Budapest Convention) of the Council of Europe. Meanwhile a future UN Cybercrime Convention is being negotiated in the UN. This article outlines these developments.
Guest editorial eucrim 2-2023