Earlier this week, an article regarding the cross-border gathering of electronic evidence under the EIO-Directive was published in the University of Graz Law School’s Paper – Law@Graz. The idea behind publishing an article written by a student in a paper for students was to present the EIO-LAPD project to them, as well as interest them in this rather complex topic by writing about something that appeals to younger generations, namely the electronic evidence.

The article tried to shed some light on the relevance of the EIO-Directive mirrored in substantive changes in the horizontal model of judicial cooperation it established, especially when it comes to collecting and transferring electronic evidence. In the contemporary world, there is an ever more pressing need to develop new and improved tools that would ensure a quick and efficient way to assess and subsequently collect cross-border electronic evidence. However, the exponential development of technology that is becoming intrinsic to every aspect of our everyday life does not necessarily go hand in hand with traditional legal concepts such as territoriality and jurisdiction.  As one could expect, even the European Union constantly has to face this challenge by coming up with new measures within its framework to accommodate the increasing need to obtain relevant data – e.g. ‘content data’ such as e-mails, text messages, photographs, and videos, as well as subscriber data or traffic information regarding an online account  – for criminal investigations. One of the solutions was offered in the EIO-Directive by introducing the possibility of collecting and transferring evidence in electronic form through the EIO. The EIO also set forth standards that must be met if electronic data collected as part of a criminal investigation are to qualify as evidence accepted as ‘admissible’ before a court of law.

However, since the expeditious gathering of evidence under the framework of the EIO-Directive often happens to the detriment of the fundamental rights of individuals involved in the proceedings, the article assessed the changes introduced by the EIO-Directive that would grant more adequate protection of fundamental rights. For example, if a requested measure violates a certain fundamental right, the executing authority can now refuse the execution of the requested measure or it can recurse to another less intrusive measure not indicated by the EIO that it deems more suitable to achieve the same result. Still, these innovations do not automatically ensure the impeccable and trouble-free use of the EIO. In practice, the balance between these two conflicting principles – safeguarding fundamental rights and the effectiveness of the criminal proceedings – is not so easily attained. As could be expected, implementing the EIO could quickly lead from one extreme to the other. On one hand, the respect for fundamental rights could easily be diminished in order to gather evidence as swiftly as possible, and on the other, carrying out a criminal investigation could be compromised by the disproportionate regard for fundamental rights. It is in this respect that the principle of proportionality as introduced by the Directive plays a crucial role in balancing out the two opposites.

Author: Nikolina Kulundžija

Link to online issue of Law@Graz: