Legal Analysis

New EU laws on e-evidence are being negotiated – but what about human rights?

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In the final weeks of the European Parliament, the LIBE Committee has produced a new working document on the Proposal for a Regulation on European Production and Preservation Orders for electronic evidence in criminal matters.

The purpose of the working paper was to address the issue of the enforcement of European Production Orders, and European Preservation Orders, as well as consider possible remedies and safeguards in their use. The report reflects recommendations made by Fair Trials.

Increased efficiency in cross-border electronic data exchange could help to protect fair trial rights and serve the interests of the defence as well as victims. However, benefits will only be possible if key safeguards are incorporated into the new mechanisms. The new laws are a key opportunity to set high standards and set an example in upholding the fairness of criminal proceedings.

Following on from Fair Trials’ policy brief, the consultation paper on cross-border access to electronic data outlines the key safeguards required to preserve the fundamental fair trial protections for people accused of crime. In the ongoing negotiations for new EU laws on e-evidence, human rights protections have been recognised so far only by vague and uncertain principles.

In 2018, the European Commission presented a proposal for new e-evidence rules to make investigation of cyber-crimes easier. Under the proposed E-evidence Package, Member States can require electronic data from service providers established in another Member State or outside the EU. There had previously been momentum in making these new rules happen quickly, but the working paper highlights that fundamental fair trial protections should not be forgotten. The rules should include safeguards on prior notification to the suspect, robust prior judicial authorisation procedure, meaningful remedies, and effective oversight on the use of the measures.

Prior notification to the suspect about the gathering of data is key in ensuring that suspects can defend themselves. Therefore, the new e-evidence laws should contain a clear presumption of notification and limit law enforcement authorities’ power to use secrecy. However, the proposed new laws would prevent the service provider from informing the person whose data is sought in the name of avoiding obstructing the relevant criminal proceedings.

In a fair criminal justice system, legal power to gather electronic data should be used in a proportionate way. The new laws should require control over the requests for data in terms of suspicion of criminality (and the severity of the offence) as well as the relevance of the evidence sought, before the data can be shared. In addition, requests must be subject to prior meaningful judicial oversight to avoid overbroad and disproportionate requests.

The accused person must have the right to challenge the request and use of data at trial, and seek remedies where data has been obtained illegally. However, the e-evidence proposals do not specify the remedies, leaving it up to Member States to determine the consequences of a violation. The new rules must specify the appropriate remedy that applies where electronic evidence has been obtained illegally and needs to enable a review of the way in which evidence was gathered.

Effective oversight and public accountability mechanisms lower the risk of improper use, and help protect both the legitimacy of law enforcement and those who could become victims of abuse. Law enforcement authorities, the US government, EU Member States and service providers should be required to publish data regularly on the use of cross-border evidence gathering tools to allow for a better understanding of how mechanisms are being used in practice, enable the identification of misuse, and to ensure accountability.

The e-evidence proposals will now be paused while Europe prepares for elections, but it will be high on the agenda for the new Parliament when it reconvenes later in the year.

Download the consultation paper here.