The think tank, the Centre for European Policy Studies (CEPS), published, on Wednesday 14 October, a new report on cross-border data access in criminal proceedings, which calls on the European Commission to withdraw its 2018 legislative proposals on electronic evidence (see EUROPE 12003/18).
The report reflects the results of research conducted by a task force set up jointly by the CEPS and the Global Policy Institute at Queen Mary University in London on the legal and practical issues relating to the respect of fundamental rights raised by the processing of cross-border requests for electronic information.
In an online presentation of the report, Marco Stefan, one of the authors, explained that none of the different proposals advanced so far by the European institutions on the e-evidence would guarantee a systematic and/or meaningful involvement of the Member State enforcing the European Data Production Order.
However, in order to effectively qualify as a form of judicial cooperation satisfying EU fair-trial standards in the criminal justice domain, a measure must guarantee the review and express validation of foreign data requests by the competent authorities in the executing country, the report stresses.
Limiting judicial cooperation for evidence gathering in criminal matters to a system of ‘mutual notification’ of cross-border investigative measures is in not line with EU and Member States’ constitutional requirements for effective judicial protection, it warns.
This would also limit the right to an effective judicial remedy and could lead to a greater administrative burden on national judicial systems, according to the experts.
Instead, the report recommends strengthening judicial cooperation within the framework of the existing European Investigation Order (EIO). According to the document, the establishment of a single EU portal of electronic communication and transmission of digital EIOs between judicial authorities could significantly speed up and streamline the exchange of information and documents.
The rapporteur in the European Parliament, Birgit Sippel (S&D, Germany), welcomed the recommendations of the task force. She also took stock of the state of negotiations in the European Parliament, which has not yet adopted its position on these proposals.
Negotiations between political groups were delayed due to the Covid-19 pandemic (see EUROPE 12462/17), she recalled, and could only resume in September.
The crux of the negotiations is still the notification and involvement of the executing State (see EUROPE 12439/9), she confirmed, with still a division between the S&D, Greens/EFA and GUE/NGL groups, in favour of strong involvement, and the EPP, ECR, ID and Renew Europe groups, who want a lighter procedure.
The rapporteur also wants to strengthen the rights of the person whose data are transmitted. During the negotiations, she hopes to obtain the introduction of new articles in the text to limit the use of the data obtained, to impose an obligation to erase them after a certain period of time and to find a compromise for the introduction of a right to an effective remedy against European injunctions.
Ms Sippel assured the authors of the report that, in any case, she would fight to strike the right balance between effectiveness and adequate protection of fundamental rights. See the report: https://bit.ly/3doYmDz (Original version in French by Marion Fontana)