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Publication

Policy Brief: The impact on the procedural rights of defendants of cross-border access to electronic data through judicial cooperation in criminal matters

December 13, 2018 - e-evidence
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Evidence has always been at the heart of criminal justice systems, forming the building blocks of the criminal case, crucial to establishing the guilt (or innocence) of people accused of committing criminal offences. In an increasingly digitalised world, electronic data, such as the contents of communications exchanged on social media or personal information about the subscriber of an email account, may contain critical information that could be used to incriminate or exculpate a person investigated in relation to a criminal offence.  The electronic data may be stored or held by a company in a country other than where the criminal investigation is taking place.  

Law enforcement authorities can turn to a range of tools to gather objects and information, including electronic data, located abroad that may later be used as evidence at trial. Fundamentally, these tools are one-sided, designed according to the needs of law enforcement authorities and do not provide or foresee the needs of the defence.

The aim of this paper is to analyse the impact of current mechanisms for the cross-border access to electronic data on the fairness of criminal proceedings. The paper highlights the concerns on e-evidence and the right to a fair trial, challenges to the fairness of a criminal process, lack of accountability with respect to the use of the existing mechanisms, and implications on the rule of law, and proposes a number of recommendations for reform.

This brief 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, and supported by the Justice Programme of the European Union.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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