CEPS and QMUL recently concluded a Task Force on “Cross-border data access in criminal proceedings and the future of digital justice”. This extensive multi-stakeholder consultation process - which involved EU and national policy makers, private sector representatives, as well as lawyers and prosecutors, legal scholars, and actors from the civil society - addressed the many legal certainty issues raised by EU proposals, US legislation, and international initiatives promoting direct public-private cooperation for cross-border gathering of data in criminal matters.
The Task Force found that public-private partnerships between law enforcement authorities and providers of internet and telecommunication services are not compatible with the fundamental rights and rule of law standards upolding judicial cooperation in criminal matters under EU law.
The e-evidence proposals, in particular, risks blurring the boundaries between different policy fields (law enforcement and criminal justice cooperation) which – under the EU system – are governed by a different set of principles and rules. The Task Force also helped clarify how the proposals would transfer to service providers a set of functions and responsibilities (i.e. those related to the execution of a foreign criminal justice measure) that, traditionally, are entrusted to judicial authorities. Throughout the Task Force deliberations, it furthermore emerged how the proposals would also create confusion between the EU internal and external action in the field of cross-border data gathering in criminal matters.
The standing EU framework of judicial cooperation in the field of cross-border evidence gathering is based on a system of mutual ‘peer review’ of criminal justice decisions. As repeteadly stressed by the Court of Justice of the European Union, reciprocal judicial scrutiny of cross border data-gathering measures constitutes a key legal certainty factor and must be upheld in judicial cooperation between EU countries. An equivalent (if not higher) level of judicial scrutiny must by extension apply to criminal justice and law enforcement measures originating from third countries (such as the US and the UK), to which the principle of mutual (but not blind) trust does not apply.
Inter-institutional negotiations on a Regulation introducing European Production Orders (EPOs) and European Preservation Orders (EPO-PRs) are due to kick-start soon. The positions so far expressed on the draft regulation by the different EU law making institutions diverge substantially over several important elements. These include, most notably, the level of judicial protection required at the issuing phase, the nature and quality of involvement of competent judicial authorities in the member states different from the issuing one, the level of data protection to be ensured depending on the type of information targeted by the proposed orders, and the exact ex ante and ex post procedural safeguards guaranteed to the different categories of companies and individuals potentially affected by the envisaged measures.
And yet, from the Task Force discussions it emerged that none of the different proposals seem to guarantee a systematic and/or meaningful involvement of the member state of execution (nor of the affected member state). Serious doubts exist as to whether limiting the involvement of second EU member states’ judicial authority to (various forms of) notification is in line with EU and member states’ constitutional judicial protection requirements.
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. Departures from the tested principles, rules and procedures governing EU judicial cooperation in criminal matters will likely expose the e-evidence legislation to the risk of failing a legality test before the Court of Luxembourg.
The Task Force discussions have made clear that in a context where the processes of rule of law deterioration are accelerating in several EU countries, and where the adequacy of third countries’ legislation and practices on data processing by law enforcement authorities are found inconsistent with EU fundamental rights standards, there is a serious need for a thorough reassessment of the necessity and appropriateness of any EU internal and external legislation introducing new cross-border data-gathering instruments outside existing judicial cooperation channels.
The Task Force found no evidence nor consensus among prosecutors and/or judicial authorities showing that new instruments of intra-EU criminal justice cooperation for the gathering of data in criminal proceedings are urgently needed. To the contrary, the European Investigation Order (EIO) is progressively proving its added value as a judicial cooperation instrument, allowing member states’ judges and prosecutors to swiftly request, collect and exchange different categories of information across the EU in line with the principle of mutual recognition of judicial decisions in criminal matters. There is neither qualitative nor quantitative evidence supporting the Commission’s claims that cooperation under the EIO generally takes too long and is therefore ineffective for the specific purpose of collecting data held across borders. tion of the EIO’s implementation.
Against such backdrop, the Task Force recommended to invest in the development of digital platforms to foster communications and dialogue between member states’ judicial authorities, and to allow them to exchange criminal justice decisions – most notably EIOs and MLA requests – in a secure, fast, streamlined and trusted way.
An EU-level platform for digital exchange of information and documents between competent judicial authorities is particularly needed to complement national systems, and to improve cross-border judicial cooperation within the EU. Such a platform would facilitate the transmission of judicial orders, court decisions, translations, and data obtained from private companies executing an investigative measure.
The e-Evidence Digital Exchange System (eEDES) could, in particular, significantly facilitate the work of investigating and prosecuting authorities, because it would allow the issuing and execution of a wide range of investigative actions (including orders mandating the cross-border production and preservation of data) through a single judicial tool.
Marco Stefan is Research Fellow at CEPS Justice and Home Affairs Unit.
Marco holds a PhD in EU Law. His specialisation touches upon a wide range of EU justice and home affairs, including police and judicial cooperation in criminal matters, as well as migration and border controls. He has extensive practical experience in qualitative research and consulting focusing on the Area of Freedom, Security and Justice.