Towards the EU Harmonization of Access to Cross-Border E-Evidence: Challenges for Fundamental Rights & Consistency

Nathalie A. Smuha

doi:10.5771/2193-5505-2018-1-83

Contents
- Chapter Expand | CollapseAuthorsPage
- 1–2 Titelei/Inhaltsverzeichnis 1–2
- 3–4 Editorial 1/2018 3–4
- 5–142 Articles 5–142
  - 5–38 (In)Effectiveness of Criminal Sanctions as Regards Irregular Immigrants Costanza Di Francesco Maesa Costanza Di Francesco Maesa 5–38
  - 39–61 Unity of Intent Effect on Sentencing: An EU Dimension to ne bis in idem and Proportionality? Nele Audenaert Nele Audenaert 39–61
  - 62–82 Electronic Evidence in Criminal Matters: How About E-Evidence Instruments 2.0? Sofie Depauw Sofie Depauw 62–82
  - 83–115 Towards the EU Harmonization of Access to Cross-Border E-Evidence: Challenges for Fundamental Rights & Consistency Nathalie A. Smuha Nathalie A. Smuha 83–115
  - 116–142 Anonymous Witness Evidence before the European Court of Human Rights: Is It Still Possible to Speak of “Fair Trial”? Simone Lonati Simone Lonati 116–142
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EuCLR European Criminal Law Review , page 83 - 115

Towards the EU Harmonization of Access to Cross-Border E-Evidence: Challenges for Fundamental Rights & Consistency

Autoren

Nathalie A. Smuha

DOI
- doi.org/10.5771/2193-5505-2018-1-83
- ISSN: 2191-7442
- ISSN online: 2193-5505
Abstract

In today’s digital age, a large part of our lives has shifted from the physical to the virtual world. As this holds true for ordinary citizens and criminals alike, in the context of criminal investigations, many pieces of evidence nowadays concern electronic evidence (or e-evidence). Such evidence is often located on a server abroad. Bound to the principle of territoriality, Member States are, however, unable to access e-evidence located in another Member State without the latter’s assistance. While a number of legal cooperation mechanisms between Member States exist on European level, the current framework is not adapted to the reality of the digital world and thus hampers swift criminal justice. Moreover, national legislation on access to e-evidence is highly fragmented, which generates legal uncertainty for the stakeholders involved. The European Commission aims to propose a new harmonizing Directive in early 2018, which will address these issues by enabling direct access to cross-border e-evidence. This paper argues that - while certainly facilitating the gathering of e-evidence in criminal investigations - the Commission’s proposal inevitably creates its own challenges. Two of these shall be examined in particular. First, the adequate protection of fundamental rights will need to be ensured, which will involve a delicate balancing exercise between the rights to security and criminal justice on the one hand, and the rights to privacy and criminal defence on the other. Second, the new Directive will need to maintain consistency and coherency with already existing regulation which, in view of the latter’s proliferation, will be no easy task.
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