Cross-border access to electronic evidence in criminal matters

Abstract

As the ‘cyber’ element infiltrates a significant part of criminal activity, the significance of accessing electronic evidence has risen to a critical level. The storage of this evidence outside the investigating jurisdiction prompted law enforcement authorities to actively explore avenues for collaboration with private service providers on a voluntary basis. This has resulted in the establishment of an informal channel of cooperation, running parallel to those established through mutual legal assistance and the principle of mutual recognition. The EU legislator has recently formalised this type of cooperation by adopting the Regulation (EU) 2023/1543 on European Production Orders and European Preservation Orders for electronic evidence, along with the Directive (EU) 2023/1544. This article provides a comprehensive overview of the key provisions of this Regulation and reflects critically on the paradigm shift the latter seems to expand with respect to the privatisation of law enforcement tasks.