Electronic evidence as such is no longer only relating to cybercrime but to almost all areas of criminal activities; terrorists organize their attack by talking on social networks and by chatting online or via instant messaging systems. Taking these developments into account the European Union needs to develop better means to exchange information and evidence relating to crimes in a swift and secure manner – from one country to another, to a law enforcement agency (LEA), to a public prosecutor, etc.; in order to combat crimes in cross-border dimensions. The exchange becomes crucial in counterterrorism operations and in the fight against global crimes.
At the same time, a secure and trusted exchange of information and electronic evidence in criminal cases is the “key element” towards promoting judicial cooperation in criminal matters and contributing to an effective and coherent application of EU European Investigation Order (EIO) and Mutual Legal Assistance (MLA) procedures. This is the only way to achieve a common European area of justice and to ensure cross-border cooperation between Member States and/or with third countries in the field of criminal investigations.
Tackling new crimes, such as terrorism and organized crimes, including cybercrime, can be greatly improved by enabling efficient, secure and trusted exchange of qualified information and electronic evidence among public prosecutors and LEAs of different Member States, by adopting a standardized language and standardized procedures in a cross-border dimension fostering the cooperation in criminal matters.
Two EU legal frameworks need to be considered when thinking about actions enhancing judicial cooperation in criminal fields: the already existing MLA procedures and the new frontier of the EIO.
Mutual legal assistance consists of “cooperation between different countries for the purpose of gathering and exchanging information, and requesting and providing assistance in obtaining evidence located in one country to assist in criminal investigations or proceedings in another”. In other words, mutual legal assistance procedures have been designed specifically for gathering and exchanging of evidence; however, in criminal matters there are no universal instruments governing this cooperation. Moreover, MLA procedures have not been adapted to the realities of today’s crimes which are increasingly global and complex and heavily impact the potential for rapid and efficient transfers of potential electronic evidence. In June 2016, ministers of the JHA Council recommended that mutual legal assistance procedures be streamlined, in particular with a view to exchanging electronic evidence.
Similar issues are to be considered also with respect to the European Investigation Order. Based on the flexibility of the traditional system of mutual legal assistance, the EIO is a judicial decision which has been issued or validated by a judicial authority of a Member State (“the issuing State”) to have one or several specific investigative measure(-s) carried out in another Member State (“the executing State”) to obtain evidence. The EIO may also be issued for obtaining evidence that is already in the possession of the competent authorities of the executing State. The transmission of the EIO, from the issuing authority to the executing authority, is carried out “by any means capable of producing a written record under conditions allowing the executing State to establish authenticity”. As for the transfer of evidence, “the executing authority shall, without undue delay, transfer the evidence obtained or already in the possession of the competent authorities of the executing State as a result of the execution of the EIO to the issuing State”. No reference to particular procedures or specific means is pointed out.
