28 Feb 2020

Access to Electronic Data for Criminal Investigations Purposes in the EU

Sergio Carrera / Marco Stefan

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Within the EU and across the Atlantic, investigation and prosecution of crime increasingly relies on the possibility to access, collect and transfer electronic information and personal data held by private companies across borders. Cross-border access to and collection of data for the purpose of fighting crime raise several legal and jurisdictional issues. This paper comparatively examines the constitutional, legal and administrative frameworks on access to and use of digital information in cross-border criminal justice cooperation in a selection of EU member states. It presents key challenges in the application of the EU mutual recognition and mutual legal assistance instruments, as well as the existence of ‘promising practices’ across the EU and in transatlantic relations. The paper also assesses a set of legal and practical questions raised by the ongoing policy and normative debate on the so-called “E-Evidence” Package. Finally, it sets out a number of policy options and practical ways forward for EU and national policy makers to promote judicial cooperation for cross-border access to and collection of electronic data in line with EU and international rule law and fundamental rights standards.

This report has been prepared in the context of the JUD-IT (Judicial Cooperation in Criminal Matters and Electronic IT Data in the EU: Ensuring Efficient Cross-Border Cooperation and Mutual Trust) Project, with financial support from the Justice Programme of the European Union (JUST-AG-2016-01). The report takes into account developments occurred in the field of inquiry until the end September 2019.