Data as evidence in criminal proceedings (e-Evidence)

Last edited: 3 December 2019
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About the proposal

In April 2018, the European Commission published their proposal for cross-border access to electronic evidence, consisting of several legislative proposals and international agreements:
The package’s main component is the proposal for a Regulation on cross-border access to e-Evidence. A Directive is supposed to lay down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings in the Member States. In two international agreements, similar regulations are discussed for the access to data as electronic evidence between the EU and the USA, as well as the EU and states of the Council of Europe.

I took over the role as the Greens/EFA shadow rapporteur for the package within the lead committee, the civil liberties committee (LIBE) of the European Parliament.

Subject Matter

Data processing center of Prakla-Seismos (VAX area)

At the core of the proposal lie the so-called Production and Preservation Orders that require internet platforms and providers to produce or at least preserve potential evidence. Other than the current, conventional way of judicial cooperation of states, the proposal is supposed to expeditiously allow access to data, for example to allow the identification of users behind IP addresses in criminal investigations.

My Point of View

It is problematic that investigative authorities of one member state are supposed to be able to directly address an order to a provider in another EU country, without involving authorities in that state at all.

I fear deficits in the protection of fundamental rights and legal guarantees based on the rule of law, in particular since the criminal laws of member states differ a lot from each other.
In effect, what can be a criminal offence in one country (for example abortion, assisted dying, or denial of the Holocaust), can be legal, or under a lesser penalty, in another.

Some argue that criminal investigations have to be efficient and swift, using some very grave and emotionally charged offences. But we shouldn’t forget that there are good reasons for high obstacles in criminal proceedings: we are talking about severe punishment for individuals. That is why in particular those wrongly suspected need to be protected. But even offenders have rights.

Current Status

Since the proposal was first published in 2018, the Parliament has published a number of working documents, looking at different aspects of the proposal. Since the beginning of the new term, the Parliament has now started working on its position.

In November 2019, rapporteur Birgit Sippel (S&D) published her draft report. It was followed by amendments of the other involved MEPs, and with subsequent compromise negotiations.

After that, the Parliament’s „report“ will be voted, probably combined with a mandate to take up negotiations with the Council and the Commission. These so-called trilogue negotiations can take long, depending on how controversial the positions of the parties involved are. Once both legislators (Parliament and Council) reach an agreement, there will be another vote and an agreement, before the text enters into law.

International Agreements

In parallel to the legislative procedure, the EU has started negotiations on a similar agreement with the US. This of course produces additional potential issues, as legal protections and procedural safeguards in the US differ from those in the EU.

Similar negotiations are taking place within the framework of the so-called Budapest Convention on Cybercrime with member states of the Council of Europe.

On international agreements, the European Parliament has a right to be heard, and can in particular submit drafts of agreements to the Court of Justice (CJEU). However, it is not directly involved in the negotiations.

The negotiation team in the Parliament (that is, rapporteur and shadow rapporteurs) is the same for the total of four proposals. It agreed from the beginning, that it would not deal with the international agreements before negotiations on the legislative proposals have been concluded.

Further Information

Photo Credit

Illustrative picture from a data centre (Photo: Jens Bludau, licensed under CC BY-SA 3.0)