Work has resumed in the Council on the proposal for a regulation establishing European production and preservation orders to allow electronic evidence to be produced directly from a service provider (see EUROPE 12003).
To fuel future discussion held at the working group on 5 and 6 September, member states are now examining concrete cases of the use of such orders.
In a note dated 3 August – of which EUROPE has a copy – the Austrian Presidency of the Council of the EU puts the following case to them: the prosecutor of Naples is conducting an inquiry into Anton, an Austrian citizen residing in Italy. Anton is suspected of having produced and sold child pornography content on the Internet. In order to identify his potential accomplices, a production order has been issued to recover his emails archived on Gmail, for which the legal representative resides in France.
The communication reveals that Bertrand, a French citizen living in Brussels, ordered the child pornography from Anton and that Carlos was responsible for the production of that content, under directions from Anton.
The emails also reveal that Anton communicated with his daughter, Dina, on family matters, and with Ellen, who appears to be his lawyer, on the matter of criminal proceedings against him for drink-driving in Finland.
In line with the draft regulation, all persons mentioned have a right to challenge the order to produce evidence.
Who should have the right to contest orders in such a case, and who should be informed of their issuance? The presidency asks whether the accused, for example, should benefit from these two rights.
It asks, in particular, whether Dina, the daughter of the accused, may also be entitled to object to the communication with her father being part of the dossier in this case.
Direct cooperation. Another matter on which the presidency wants to sound out member states is that of maintaining the direct cooperation set out in the regulation. The presidency notes that this is a model that differs somewhat from the “traditional” instruments of mutual recognition.
Several stakeholders (see EUROPE 12066 and EUROPE 12004) criticised the choice of the legal base of the proposal, considering that the principle of mutual recognition was reserved only for cooperation between legal authorities. (Original version in French by Marion Fontana)