Table of Contents: I. Access to electronic evidence as a new tool for criminal justice actors. – II. The importance of common procedural standards. – III. The EU’s contribution to the clarification of the applicable law. – III.1. EU Standards with a large territorial scope of application. – III.2. Negotiating a bilateral agreement with the United States of America. – III.3. Intervening in international negotiations on global standards. – IV. The limits to the EU’s ambitions. – V. Conclusion.
Abstract: The evolution of information and communication technologies has impacted society, including the modus operandi of criminals, who use them in the preparation and commission of their criminal activities. This led to the adaptation in the work of criminal justice actors who increasingly rely on electronic evidence in the course of criminal proceedings. This type of evidence, composed of data, including sensitive personal data, presents certain characteristics, as it is often produced online, easily moved and destroyed. As a consequence, several actors started to develop new standards on direct cooperation with service providers for obtaining the preservation and disclosure of such data. The present Article, taking the perspective of the European Union in such matters, aims to analyse the mechanisms through which the EU, relying on both its internal and external competences, participates in the elaboration of common criminal procedural rules. Building on the internal EU proposals on e-evidence, the EU claimed external competences to negotiate a bilateral agreement with the United States of America and to participate in the negotiations of a Second Protocol to the Budapest Convention on Cybercrime. If at the current stage of the negotiations, it is unclear what will result of these parallel processes, the EU has the possibility in the elaboration of these standards to manifest the importance it grants to the protection of fundamental rights, both internally and externally.
Keywords: electronic evidence – cooperation in criminal matters – criminal procedural law – external relations – USA – Budapest Convention.
* Post-Doctoral Research Fellow F.R.S-F.N.R.S., Université libre de Bruxelles, firstname.lastname@example.org.