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New tools for accessing electronic evidence in criminal investigations

The EU aims to improve cross-border access to electronic evidence in criminal proceedings so that crimes can be investigated and the perpetrators brought to justice more effectively. When establishing new tools, it is important to safeguard the protection of personal data and other fundamental rights and to take into consideration issues relating to sovereignty.

More effective criminal investigations

New technologies have not only enabled novel forms of crime, but they have also had a major impact on how successfully crime cases can be investigated and solved. As crimes are increasingly being perpetrated online, electronic evidence is essential in criminal investigations.

In 2018, the European Union launched a legislative initiative to create new tools for criminal investigations and criminal proceedings. Aim is to provide the Member states’ authorities with a new European tool for cross-border cooperation that will make it easier to obtain electronic evidence from providers of electronic communications services for the purposes of criminal investigations and to be used in criminal proceedings.

The Council has already adopted its position on the proposals for a regulation and a directive. Both proposals are being discussed in the European Parliament, followed by a trilogue between representatives of the Parliament, the Council and the Commission. How the legislative process will then proceed depends on positions adopted by the European Parliament.

Meanwhile, the EU has launched negotiations with the United States on an agreement that would allow EU member states’ authorities to speed up the process to obtain electronic evidence from US service providers, and vice versa. The EU is represented in the negotiations by the Commission. It reports on progress to the Council chaired by the Finnish Presidency.

The EU is bound to respect the Charter of Fundamental Rights of the European Union in all aspects of its legislative work. The rights of individuals secured in the Charter include the protection of personal data, the protection of private life and non-discrimination.

Basis in the European Agenda on Security

On 17 April 2018, the Commission presented a proposal for a regulation on European Production and Preservation Orders for electronic evidence in criminal matters. The proposed regulation lays down the procedure and the conditions under which Member States’ law enforcement authorities may compel a specific service provider offering services in the Union to produce or preserve specific data held by it in electronic form to serve as evidence in an ongoing criminal procedure. In practice, this could mean information on the content and delivery of emails, for example.

On the same day, 17 April 2018, the Commission presented a proposal for a directive to lay down harmonised rules on the appointment of legal representatives and to facilitate gathering evidence in criminal proceedings.

Both proposals are related to the European Agenda on Security, which aims to combat terrorism and security threats in the Union.

Moreover, on 5 February 2019 the Commission adopted a recommendation on opening negotiations with the United States on cross-border access to electronic evidence. Based on the recommendation, the Council adopted a decision on 7 June 2019 authorising the Commission to open negotiations with a view to concluding an agreement.

Inquiries

Lauri Rautio, Senior Ministerial Adviser, Ministry of Justice, tel. +358 2951 50380, lauri.rautio(at)om.fi