e-Evidence Regulation: A Contemporary Trojan Horse in Criminal Proceedings?

The e-Evidence package (including Regulation (EU) 2023/1543 and Directive (EU) 2023/1544), adopted in July 2023 and set to enter into force in August 2026, marks a significant milestone in the field of cross-border access to electronic evidence in criminal proceedings. This Chapter presents the key elements of the new regulatory framework, outlining the reasons that necessitated the development of these new mechanisms. It briefly discusses the lengthy process that led to the completion of the existing legal framework based on International Judicial Cooperation and Mutual Legal Assistance, as well as the rethinking of the concept of Mutual Trust through the model of direct cooperation between private entities (ISPs) and third-party states. Additionally, it raises critical questions regarding the compatibility and consistency of certain aspects of the new “Absolute Mutual Trust” system with EU fundamental principles and human rights, which emerge both from the doctrinal (European) Criminal Law (e.g., legal interests at stake) and Procedural Criminal Law (e.g., the right to a fair trial and effective remedies). These concerns arise from the legal efforts to address issues such as permanent data storage and the “absence” of non-EU service providers, ultimately aiming to facilitate investigations and prosecutions by any means.