Mutual Recognition By Private Actors In Criminal Justice? E-Evidence Regulation And Service Providers As The New Guardians Of Fundamental Rights

Abstract

A large and constantly growing number of criminal offences, not only cybercrime, is committed in a way that leaves digital traces which can serve as evidence. This data is in the possession of service providers, often located in a different country than the place of an investigation. The available model of cross-border gathering of evidence, based on mutual legal assistance, is considered too cumbersome and lengthy for the digital world. Similar reservations have been made as regards the European Investigation Order. In response, the European Commission proposed the so-called e-evidence package in 2018, which – after 5 years of arduous negotiations – was finally adopted on 12 July 2023. Its main element is the European Production Order, an instrument based on mutual recognition which will allow law enforcement authorities in one Member State to request Internet service providers in another Member State to produce data without or with limited involvement of the authorities of the latter State. This new system is effectively a legal revolution which redefines the concept of mutual recognition and creates a model where service providers will play a significant role in safeguarding their users’ fundamental rights. This article examines the paradigm shift caused by this instrument, analyses the dynamics of interaction between the parties involved – in particular the role private actors will play in it – in order to verify the correctness of the legal basis and reveal the consequences of such a new system for transnational cooperation and service providers in the EU.