DIGITAL RIGHTS: Session III – E-evidence, digital judicial cooperation and procedural safeguards, and Session IV: Solicitors’ professional privilege in the e-Evidence Regulation: assessing the effectiveness of protective safeguards.
Chryssa Mela (Fair Trials) opened and chaired the third session, which focused on e-evidence and procedural safeguards in the digital environment. She pointed out that the entry into force of the EU e-Evidence Regulation marks an important milestone in cross-border judicial cooperation, whilst raising significant questions regarding the protection of fundamental rights. Her introduction set the framework for the discussions on access to electronic evidence, mechanisms for judicial review, the right of appeal and the preservation of professional secrecy in digital criminal investigations.
Cassandra Mabille, a PhD student in European Union criminal law at the University of Liège, outlined the general structure of the e-Evidence Regulation and the new mechanisms for direct cooperation between judicial authorities and digital service providers. She explained how European orders for the production and preservation of data work, which are designed to speed up the collection of electronic evidence without systematically having to go through the judicial authorities of another Member State. Whilst highlighting the gains in speed, she drew attention to the system’s limitations, notably the reduction in prior scrutiny by the executing state and the uncertainty surrounding legal remedies, which are largely left to the discretion of national legislation.
Lea Stavrou, a lawyer and project manager, programme manager at the European Public Law Organisation (EPLO), with experience in European Union-funded projects in the fields of justice and the rule of law, went on to examine the institutional and jurisdictional challenges raised by cross-border data collection. Drawing on a practical case involving several states and a service provider based outside the European Union, she demonstrated how the new framework is based on a complex division of responsibilities between issuing authorities, executing authorities, service providers and, in some cases, courts in third countries. She emphasised that the speed of access to data could not, in itself, be considered a measure of success, and that the system’s effectiveness would also depend on the clarity of responsibilities, the quality of oversight mechanisms and the ability of the various stakeholders to cooperate within an increasingly fragmented legal environment.
Speaking from the defence’s perspective, Gwen Jansen de Wolf, a criminal lawyer at the firm Gwen Janses Advocatuur in Amsterdam (Netherlands) and coordinator of the European Criminal Bar Association’s (ECBA) working group on ‘Cybercrime, Technology and Artificial Intelligence’ working group of the European Criminal Bar Association (ECBA), and Vice-President of the European Criminal Bar Association, examined the practical difficulties involved in challenging electronic evidence gathered under the Regulation. She drew attention to the risks associated with late notifications, discrepancies between national laws and the lack of European harmonisation regarding the admissibility of evidence obtained unlawfully. In her view, the effectiveness of the right to appeal will depend largely on how national courts interpret the concepts of proportionality, necessity, and the protection of fundamental rights. She also emphasised the need for defence lawyers to be granted full access to the documents that led to the collection of the data so that they can verify its legality.
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