Admissibility of E-Evidence in Criminal Proceedings in the EU

Background

The issue of the admissibility of evidence gathered in cross-border criminal proceedings in the EU has been on the agenda for a long time, since it was included in the Tampere Conclusions. Article 82(2) of the Treaty on the Functioning of the European Union (TFEU) provides for the possibility for the European Parliament and the Council, to adopt minimum rules on the mutual admissibility of evidence. Common minimum standards on how evidence is to be gathered and transferred – and also on a set of limited exclusionary rules – are necessary to safeguard fundamental rights and facilitate judicial cooperation at EU level, in particular since e-evidence introduces a cross-border element in almost every criminal investigation and procedure. The importance of a common set of rules on evidence and in particular on e-evidence has increased due to the accelerated digitalisation in both the private and public sphere, professional and non-professional activities. Moreover, the impact of e-evidence at EU level is heightened even more by the effects of COVID-19, as the pandemic has clearly caused a major move towards digitalisation and in addition there is a marked move towards the collection of e-data for security reasons (mainly geolocation, and also to potentially track contacts of infected persons).

Recent legislative measures (Directive 2014/41/EU on the European Investigation Order (EIO) in criminal matters and Council Regulation (EU) 2017/1939 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office, EPPO) have partially addressed this topic. The EIO does not, however, include rules on admissibility of evidence or evidentiary exclusionary rules. Admissibility of evidence collected abroad will depend on how such evidentiary elements have been obtained and which rules were applied during such a process. Moreover, Article 37 of the EPPO Regulation only provides for an inclusionary rule, leaving open any grounds for the exclusion of evidence.

There is therefore no uniform practice among EU Member States. The diversity of solutions existing in each Member State on the one hand hinders the establishment of what has been called ‘an area of free movement of criminal evidence’ and on the other may also has a negative impact on defendants’ rights of defence. While several years ago Member States might have considered that supranational rules on admissibility of evidence were not strictly necessary and thus the principles of subsidiarity and proportionality for EU law would not be met, the scenario has changed completely in the last decades due to the changes visible in the present ‘digital society’.

Aim

The project aims at the development of a set of principles and a harmonised model of exclusionary rules of evidence, with a particular focus on e-evidence, which could work as a blueprint for legislation at EU level based on Article 82 TFEU. These could benefit all stakeholders involved in criminal proceedings, including suspects and defendants, legislators, judges, prosecutors, law enforcement agencies, lawyers and the general public in order to strengthen the rule of law.

Outcome

The project will develop a legislative proposal on admissibility and exclusionary rules of e-evidence in criminal proceedings, which will be accompanied by a background study analysing (1) general principles on admissibility/exclusion of criminal evidence, taking into account different national approaches of selected EU Member States; (2) relevant case law of the European Court of Human Rights; (3) the protection of the lawyer-client privilege in digital searches and the cross-border impact of such searches and (4) the identification of immunities that should be protected and whether the protection should be the same as with regard to the lawyer-client confidentiality relationship.