The European Judicial Network (EJN) seems very concerned about the direction of discussions on the legislative proposals to facilitate access to electronic evidence in criminal investigations (see EUROPE 12003/18) and, more specifically, about the position of the European Parliament, as interinstitutional negotiations began on Wednesday 10 February (see EUROPE 12633/16).
The EJN, which brings together around 400 national authorities and experts in judicial cooperation in criminal matters, set up an e-Evidence Working Group in 2018 to examine these proposals and provide the views of practitioners. At its last meeting, on 12 January 2021, it discussed Parliament’s position adopted in December 2020 (see EUROPE 12617/12).
In a statement issued at the end of this meeting and transmitted to the Member States on Tuesday 9 February, the EJN considers that: “overall, the proposal creates a burdensome procedure, from the notifications to the number of required consultations. This system does not only not generate the needed added value but provides legal uncertainty and a complex system to maintain”.
The EJN e-Evidence Working Group calls on Parliament to hear the voice of practitioners and to avoid adopting such an instrument that “would throw legal cooperation several steps backwards”.
In the Working Group’s view, the text should first be revised as it contains confusing terminology and inconsistencies.
In addition, it raises a number of concerns about entrusting service providers with competences inherent to national judicial authorities and finds it particularly problematic that access to electronic evidence depends on the assessment made by representatives of the private sector.
The fact that Parliament’s proposal introduces the possibility to refuse the execution of a request for a European injunction for the production or preservation of electronic evidence, if it is contrary to the law of a non-Member State, furthermore puts enforcement authorities in the ambiguous position of applying foreign legal requirements in the national jurisdiction, explains the Working Group.
“In the age of quickly evolving technologies, the legal acts should be able to provide flexible, modern and advanced procedures that would enable authorities to conduct their investigations effectively and entrusted to respect the fundamental rights and Rule of law”, writes the EJN.
In July 2019, the EJN had analysed the general approach of the Council of the EU, which dates back to 2018 (see EUROPE 12155/6), and considered that, overall, the proposed instruments responded to the urgent need of practitioners and brought a significant and necessary change to the EU legal framework. (Original version in French by Marion Fontana)