Judicial cooperation in criminal matters and respect for human rights. Current problems. Electronic evidence

Abstract

Through this paper we intend to make a critical analysis of the European Commission's proposal to adopt a regulation on the establishment of an instrument of judicial cooperation in criminal matters aimed at obtaining electronic evidence directly from providers of electronic communications services operating in the territory of the Union, even in the conditions in which they do not have a proper seat in any of the Member States. More specifically, the regulation seeks to establish the possibility for a judicial body in a Member State to obtain data stored by an electronic communications service provider (eg. internet services, telephony services, instant messaging and e-mail services, networks, etc.) without the need for the intervention of the authorities of the Member State in whose territory the provider is supposed to operate.

The starting point was the joint statement of the Ministers of Justice and Home Affairs and the representatives of the European Union institutions on the terrorist attacks of 22 March 2016 in Brussels, which noted the low effectiveness of existing judicial cooperation instruments in obtaining electronic evidence.

Although the purpose of this tool is to obtain data on various criminal activities in record time, allowing the rapid intervention of requesting judicial authorities, the mechanism designed under the auspices of the European Commission is not only atypical in relation to the forms of judicial cooperation in criminal matters existing at the moment, but also raises serious issues from the perspective of fundamental human rights.

Therefore, this paper will be comprised of two parts: on the one hand, we will analyse the pillars on which the current system of European judicial cooperation in criminal matters is based and the relationship of this system with the sphere of human rights protection, and on the other hand, we will review, from a critical perspective, the provisions of the proposed regulation formulated by the European Commission.