Evidence in criminal proceedings

Key points

The EESC:

• supports the introduction through Regulation (COM (2018) 225) of binding European instruments to secure and access data for criminal investigations and proceedings; emphasises the need to respect fundamental rights and the principles established by the Charter of Fundamental Rights and Member States' constitutions;
• feels that the current disparity in national cooperation mechanisms for the individual Member States when it comes to the collection of evidence located in another country, gives rise to legal uncertainty and may endanger the protection of fundamental rights;
• favours in this respect the establishment of European uniform standards, in the light of the differing conditions at national level that currently exist concerning access to data during criminal proceedings and on who can grant access;
• welcomes that the European Production Order will be utilised only for serious crimes, however deems that the guiding principle should be for offences punishable by a minimum three-month penalty rather than a penalty of maximum three years;
• supports that both production and preservation orders are subject to the issuing and confirmation of judicial authorities; questions however the fact that subscriber and access data can also be authorised by a prosecutor, and recommends that the collection of personal data should be subject to judicial reservation;
• favours the possibility that the addressee can question the legality, necessity and proportionality of a Production Order;
• welcomes the reference to safeguards established by the EU acquis, especially in the light of the problems that may arise if third countries impose obligations on EU service providers which do not conform to EU fundamental rights;
• welcomes the Commission's work on new rules for police and judicial authorities to ease their access to electronic evidence;
• advocates the inclusion of a ''conflicts of obligations'' clause which gives the opportunity to service providers to report conflicting obligations they encounter, which would bring about a judicial review;
• supports that through Directive (COM (2018) 226), it would be imperative for service providers to nominate a legal representative in the EU who would deal with the decisions received; feels that this would help service providers comply with decisions received whilst providing clarity in terms of who would be dealing with orders for the collection of data for criminal proceedings.