Mutual Admissibility of Evidence and Electronic Evidence in the EU A New Try for European Minimum Rules in Criminal Proceedings?

• Date: 02 November 2023
• Author: Prof. Dr. Lorena Bachmaier
• DOI: https://doi.org/10.30709/eucrim-2023-019
• Pages: 117

I. Introduction

Judicial cooperation in criminal matters in the EU is based on the principle of mutual recognition. To this end, Art. 82 (1) and (2) of the Treaty on the Functioning of the EU (TFEU) establishes the competence of the EU to adopt measures and minimum rules in order to implement this principle, while respecting the possibility for Member States to maintain a higher level of protection of fundamental rights. On the basis of this legislative power, the EU has already adopted numerous directives and regulations to facilitate the principle of mutual recognition, e.g. on procedural rights, conflicts of jurisdiction, or victims’ rights, to name but a few. Although Art. 82 (2) lit a) TFEU expressly mentions the possibility to adopt by means of directives rules on “mutual admissibility of evidence between Member States” to the extent “necessary to facilitate mutual recognition of judgments and judicial decisions and police and judicial cooperation in criminal matters having a cross-border dimension”, the EU has not yet adopted any legislative instrument in this regard.

Law enforcement authorities, public prosecutors, defence lawyers, and legal scholars have consistently argued that it is necessary to provide legal certainty in this area, not only to ensure the admissibility of cross-border evidence but also to provide for an adequate protection of the defendants’ rights when faced with incriminating evidence obtained abroad.¹ The EU institutions have also acknowledged the need for such a legal framework,² but have so far failed to put forward a proposal on rules on the admissibility of evidence in criminal proceedings.³ This does not mean that efforts to move forward in this field since the Tampere Council⁴ have been lacking,⁵ but it seems that the EU has not managed to gain enough support from Member States to put this topic on the agenda.

On 5 May 2023, the European Law Institute (ELI) adopted a Proposal for a Directive of the European Parliament and of the Council on Mutual Admissibility of Evidence and Electronic Evidence in Criminal Proceedings (hereinafter the ELI Proposal), which is the result of a two-year project.⁶ It is a draft that is intended to serve as a blueprint for a future Directive on the admissibility of evidence in criminal proceedings. It has been discussed with all the main stakeholders involved in cross-border criminal proceedings in the EU, who have worked together to address and balance the needs and interests of all parties. It would be welcome if the EU Commission would use it as a starting point to move towards rules on the admissibility of evidence in transnational criminal proceedings.

But is there really a chance for a future Directive on admissibility of evidence? Do the differences in the legal traditions and in the national criminal justice systems prevent the adoption of certain minimum rules on admissibility of evidence?

This article seeks to address these questions and put forth arguments in favour of a legislative action at the EU level. I am convinced that the best way to prevent the inadmissibility of cross-border evidence lies in the adoption of a set of minimum rules, especially with regard to the new digital era in which we live. In the light of the ELI Proposal on the admissibility of evidence, I will outline why Member States should reconsider their traditional negative stance against any EU initiative on evidentiary rules in criminal proceedings.

II The Main Features of the European Law Institute Proposal

Clear progress has been made in European judicial cooperation in criminal matters, which has mainly focused on simplifying procedures based on the principle of mutual recognition, restricting refusal grounds, establishing time frames for the execution of requests providing standardised forms, setting up swift communication among judicial authorities, etc. However, no parallel effort has been made to adopt general rules setting out the main principles on the admissibility of cross-border criminal evidence.⁷ Said ELI Proposal seeks not only to fill this gap but also to provide certain standards for harmonising the gathering of electronic evidence. Keeping these two goals in mind, the ELI Proposal is divided into two parts.

The first part (Chapter 2) contains a set of rules aimed at clarifying which standards need to be respected in criminal proceedings when evidence has been gathered in another Member State under rules that are likely to be different from those applicable in the forum State. The ELI Proposal neither imposes rules on how the evidence should be gathered in each Member State nor stipulates how Member States are to regulate any of the criminal investigative measures (except certain rules regarding electronic evidence). It also does not affect the free assessment of evidence that lies with the national courts.

The principles set out in the first part try to balance the two main interests at stake: enhancing respect for defendants’ rights, on the one hand, and enhancing the free circulation of evidence and therefore the effective prosecution of cross-border crimes, on the other. To this end. the Proposal establishes compliance with lex loci regit actum as the main principle (Art. 4 ELI Proposal); it is up to the executing authorities and for the trial court in the forum state to verify that these rules have been complied with. In addition, the defence shall have access to the necessary means to be able to verify whether the evidence gathered abroad has in fact been obtained in accordance with the lex loci. This principle is not new, since it is already set out in most MLA conventions.

What the ELI Proposal requires is that the lex loci regit actum principle is effectively complied with: the trial court, together with the executing authorities and the defence, has the duty to make certain that the evidence has been obtained in conformity with the lex loci. Ensuring adherence to the lex loci serves two goals: first, it is a requirement for the admissibility of evidence providing for lawfulness in the gathering of the evidence; second, it ensures that the diverse legal frameworks do not represent an obstacle to the admissibility (use) of the evidence obtained abroad. The only exception to this general principle is for cases in which the use of such evidence would infringe fundamental constitutional principles of the forum State (Art. 4 (1) ELI Proposal).

In this way, the ELI Proposal underlines that mutual recognition is not equivalent to applying the principle of non-inquiry. It aims at strengthening the principle of mutual recognition but only when the evidence has been lawfully obtained according to the lex loci. And this principle also applies to evidence obtained in administrative proceedings. It provides for some flexibility, however, allowing the forum State to activate a kind of emergency break and refuse the cross-border evidence if, despite complying with the lex loci, a fundamental principle of its constitution is violated.

Although this approach may not be ideal purely from the perspective of the principle of mutual recognition, it seems to be the most reasonable approach in order to help reduce Member States' resistance towards the adoption of a Directive on the admissibility of evidence. Knowing that there is still a possibility to invoke fundamental principles of the national justice system against the evidence obtained abroad should calm the existing concerns expressed by several national authorities.

In this realm, the problem of identifying the lex loci with regard to electronic evidence arises, as the location of the items of evidence is unknown in many cases. Art. 2 ELI Proposal clarifies this issue by defining the lex loci as the “place where the access to evidence was granted”.

Evidence obtained by means of torture or ill-treatment, in violation of the right against self-incrimination, and by deception are considered grounds for the absolute inadmissibility of evidence (Art. 5 ELI Proposal). This neither represents an innovation nor an intrusion into the national criminal justice systems but simply a way of ensuring an effective respect for the fundamental rights standards in the Charter of Fundamental Rights of the European Union and in the European Convention on Human Rights (ECHR), as defined in the respective European courts’ case law. Some argue that such an inadmissibility ground does not provide any added value, since such obligations already exist under the EU Charter and the CoE Convention. However, practice shows that the implementation of these standards is still far from being a reality in all Member States.

Art. 6 ELI Proposal provides for a set of non-absolute rules on the admissibility of evidence, whereby the Member States “shall ensure” that certain evidence is not admitted. This provision seeks to strengthen compliance with safeguards that are already included in most – if not all – national codes of criminal procedure such as the protection of the lawyer-client privilege.⁸

The second part of the ELI Proposal aims at providing precise rules on the gathering of electronic evidence.⁹ These rules are mainly based on the already adopted international forensic standards as accepted in judicial practice.¹⁰ This part includes safeguards to ensure the integrity, authenticity, and completeness of the electronic evidence, the possibility to challenge such evidence, and access to the IT expertise and other machine-learning devices – also for the defence (Art. 7 (5) ELI Proposal). Although no harmonising rules have been established for other types of evidence, there were two reasons for including very precise rules on the gathering of electronic evidence: first, the rules on gathering electronic evidence in criminal proceedings are at an...