All evidence is equal, but electronic evidence is more equal than any other: The relationship between the European Investigation Order and the European Production Order
| Published date | 01 June 2020 |
| Author | Stanislaw Tosza |
| DOI | 10.1177/2032284420919802 |
| Date | 01 June 2020 |
| Subject Matter | Articles |
Article
All evidence is equal, but
electronic evidence is
more equal than any other:
The relationship between
the European Investigation
Order and the European
Production Order
Stanislaw Tosza
Utrecht University, the Netherlands
Abstract
The European Investigation Order (EIO) was supposed to offer a comprehensive solution to
cross-border gathering of evidence within the area of freedom, security and justice replacing a
patchwork of instruments and providing for one single standardised order for all types of evidence.
However, not even a year since the deadline for its implementation had passed, the Commission
proposed an instrument that would be applicable for electronic evidence: European Production
Order (EPO). This initiative was born from an increasing frustration in gathering this type of
evidence and the conviction that the EIO is not suitable for that purpose. The need for digital
evidence (according to the estimate of the EU Commission, 85% of criminal investigations require
electronic evidence) is a direct consequence of the place information and communication tech-
nology has taken in everyday life. However, electronic evidence differs in a number of ways from
‘real-life’ evidence rendering current legal framework extremely impractical for law enforcement.
One of the major obstacles that law enforcement authorities encounter is the fact that the data
they need are often stored abroad or by a foreign service provider. Both instruments were
conceived because of the need to gather evidence across borders; however, the transnational
component is different (evidence being abroad vs. service provider being foreign). Both instru-
ments subject ‘European citizens to the investigative machinery of any other Member State’,
however, in a different way. If the e-evidence package is adopted, it will create a dual system of
cross-border gathering of evidence, with different philosophy, procedure, enforcement and pro-
tective framework. The goal of this article is to analyse and compare two different models of
Corresponding author:
Stanislaw Tosza, Utrecht University, Willem Pompe Institute, Newtonlaan 201, Utrecht 3584 BH, the Netherlands.
E-mail: s.tosza@uu.nl
New Journal of European Criminal Law
2020, Vol. 11(2) 161–183
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/2032284420919802
njecl.sagepub.com
NJECL
NJECL
acquiring evidence that these two instruments offer as well as to delimitate their (non-exclusive)
scope. The concluding part will provide a reflection on the systemic consequences of this duality of
instruments and of introducing the EPO model in particular.
Keywords
Evidence, criminal investigati on, electronic evidence, European Investigation Order, Eu ropean
Production Order, cross-border evidence gathering, European Criminal Law
Introduction
With the right to liberty as the paramount human freedom, the application of the mutual recog-
nition principle to requesting persons for criminal proceedings or execution of sentence was
conceived relatively early and the framework decision (FD) on European Arrest Warrant has been
functioning for almost two decades already. Applying it to cross-border gathering of evidence has
been a much tougher nut to crack.
1
The European Evidence Warrant (EEW) was adopted only in
2008 and its scope was limited. Eventually the European Investigation Order Directive (EIOD)
was adopted in 2014 and it was supposed to offer a comprehensive solution. But already before it
entered into force, the Commission opened the discussion on a potential instrument that would
offer an alternative legal framework for electronic evidence.
This debate resulted in the proposal of the Commission issued in April 2018 of a package
consisting of a regulation and a directive a iming at creating a legal framework allowing law
enforcement in one member state to directly request service providers in another member state
to produce or preserve data (European Production Order – EPO).
2
While the regulation is the main
instrument of the package, the directive should ensure that service providers in the EU designate
representatives entitled to re ceive and comply with the orders. The Council issued a gener al
approach in December 2018
3
and it is now for the EU Parliament to formulate its position.
Both instruments were conceived because of the need to gather evidence across borders;
however, the transnational component is different (evidence being abroad vs. service provider
being foreign). Both instruments subject ‘European citizens to the investigative machinery of any
otherMemberState’,
4
however, as it will be shown below, in a very different way. If the
e-evidence package is adopted, it will create a dual system of cross-border gathering of evidence,
with a different philosophy, procedure, enforcement and protective framework.
5
1. John R Spencer, ‘The Green Paper on obtaining evidence from one Member State to another and securing its admis-
sibility: The Reaction of one British Lawyer’ (2010) Zeitschrift fu¨ r Internationale Rechtsdogmatik, 602, 603 ff.
2. Proposal for a Regulation of the European Parliament and of the Council on European Production and Preservation
Orders for electronic evidence in criminal matters [2018] 2018/0108 (COD); Proposal for a Directive of the European
Parliament and of the Council laying down harmonised rules on the appointment of legal representatives for the purpose
of gathering evidence in criminal proceedings [2018] COM/2018/226 final.
3. Regulation of the European Parliament and of the Council on European production and preservation orders for electronic
evidence in criminal matters – general approach [2018] 15292/18.
4. Ines Armada, ‘The European Investigation Order and the Lack of European Standards for Gathering Evidence’ (2015) 6
NJECL 8, 9.
5. Some previous instruments remain applicable, see below.
162 New Journal of European Criminal Law 11(2)
To continue reading
Request your trial