Public consultation on improving cross-border access to electronic evidence in criminal matters

Input is expected from a broad range of interested stakeholders, including public authorities, judges, prosecutors, EU institutions and agencies, international organisations, private companies, professional and business associations, civil society, academics and the general public.

The objective is to gather input from a broad range of interested stakeholders, including public authorities, judges, prosecutors, EU institutions and agencies, international organisations, private companies, professional and business associations, civil society, academics and the general public.

The questions asked will enable the collection of information, views and experiences on current practices on obtaining cross-border electronic evidence in the Member States as well as on practical and legal problems arising both at national and EU level from gaps and weaknesses of existing regulations.

In our days crime often leaves digital traces that can serve as evidence in criminal proceedings. But gathering evidence in cyberspace also brings new challenges for law enforcement and judicial authorities. Measures to obtain access to evidence as part of a criminal investigation ^[1] are usually national in scope. By contrast, obtaining electronic evidence frequently has cross-border implications. Therefore, authorities have to rely on judicial cooperation mechanisms like mutual legal assistance (MLA) or, within the EU, mutual recognition, on the direct cooperation of service providers, or on direct access to obtain information. All three channels raise different types of issues affecting the success of investigations resulting in abandoned and unsuccessful cases and, ultimately, in a less effective administration of criminal justice.

In the European Agenda on Security ^[2], the Commission committed to review obstacles to criminal investigations on cybercrime, notably on cross-border access to electronic evidence. In its June 2016 Conclusions, the Justice and Home Affairs Council asked the Commission to explore possible solutions, including legislative options ^[3]. The Commission subsequently announced an initiative on access to electronic evidence in its 2017 Work Programme ^[4] and presented a non-paper in June 2017 ^[5].

In the perspective of improving access to electronic evidence in criminal investigations, the Commission will assess the scope for horizontal or further sectorial action at EU level, while respecting the principle of subsidiarity . The present public consultation is intended to feed this assessment - without, however, either prejudging any action by the European Union or prejudging the legal feasibility of an EU action with regards to the limits of the Union's competence.

[1] The tools most frequently used are measures requesting a service provider to provide information on a user of the services ("production requests/orders") and measures allowing direct access to the said information.

[2] COM (2015) 185 final

[3] Conclusions of the Council of the European Union on improving criminal justice in cyberspace, ST 9579/16.

[4] COM(2016) 710 final.

[5] All documents and more information are available at https://ec.europa.eu/home-affairs/what-we-do/policies/organized-crime-and-human-trafficking/e-evidence_en.

COMMISSION STAFF WORKING DOCUMENT IMPACT ASSESSMENT Accompanying the document Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation Orders for electronic evidence in criminal matters and Proposal for a Directive of the European Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose of gathering evidence in criminal proceedings SWD/2018/118 final