The Right to an Effective Remedy In International Data Transfers of Electronic Evidence: Past Lessons and Future Outlook

Abstract

Cross-border and international collaboration of authorities is often a necessity, involving inter alia the exchange of good practices, tools, human resources, but also information, including personal data. Cross-border access to data is essential in the context of electronic evidence in criminal investigations and proceedings, as more than half of all criminal investigations involve a cross-border request to obtain e-evidence. From a fundamental rights perspective, a common denominator in transborder exchanges of data -irrespective of whether they take place for commercial or for criminal purposes- is that the right to effective remedy of the individuals concerned shall be safeguarded, a right protected under Article 47 of the Charter of Fundamental Rights and Freedoms of the European Union. Taking into account this context, this paper provides a comprehensive analysis and assessment of the right on effective remedies for EU citizens in international data transfers of electronic evidence and discusses the future of the right to effective remedies in transatlantic transfers of data in this context. The main argument of the paper is that the effective remedies for sharing electronic evidence outside the EU territory are not sufficiently guaranteed by the existing applicable rules, due to the piecemeal approach followed in the EU.