@article{2018:smuha:towards_th,
title = {Towards the EU Harmonization of Access to Cross-Border E-Evidence: Challenges for Fundamental Rights & Consistency},
year = {2018},
note = {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.},
journal = {EuCLR European Criminal Law Review},
pages = {83--115},
author = {Smuha, Nathalie A.},
volume = {8},
number = {1}
}