IMPACT OF MODERN TECHNOLOGIES ON FREE MOVEMENT OF EVIDENCE IN EUROPEAN UNION

Abstract

According to the estimate of the EU Commission 85 percent of criminal investigations require electronic evidence, while in almost two thirds (65 percent) of the investigations where e-evidence is relevant. Investigation and prosecution of crime increasingly relies on the possibility to have access to data held by service providers, as private company. Modern criminal investigation and use of electronic evidence imposes challenges to the right to fair trial and rule of law standards. The paper identifies benefits and challenges of proposed EU instruments for facilitating e-evidence. The European Commission proposed Regulation of Production Order and Preservation Order with the aim to facilitate access to relevant data stored by service providers. The paper recognizes shortcomings of the proposed Regulation. The biggest challenge is lack of judicial oversight of orders, as a guarantee of fair trial. The paper includes recommendations and policy options for promoting judicial system for cross border access and collection of electronic data in line with EU fundamental rights standards.