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2023 | Book

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European Investigation Order

Where the Law Meets the Technology

Editors: Maria Angela Biasiotti, Fabrizio Turchi

Publisher: Springer International Publishing

Book Series : Law, Governance and Technology Series

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

Table of Contents

About this book

In the era of globalisation, cross-border crimes are becoming increasingly common. The nature of these crimes is complex, and cross-border evidence exchange is, therefore, crucial to the successful prosecution of these offences. The exchange of evidence between countries can provide invaluable assistance in solving crimes that have an international dimension.
The European Investigation Order (EIO) allows judicial authorities to request evidence more quickly and easily than via traditional instruments. The EIO has become the primary legal tool for gathering trans-border evidence, replacing the traditional Mutual Legal Assistance (MLA) conventions previously used. However, the EIO is not the only pertinent legal instrument for cross-border evidence gathering within the EU. Accordingly, professionals need a clear understanding of this subject.
Exchanging evidence among judicial authorities in the EU Member States presupposes two essential components. First, there must be a secure communication channel. This is provided by e-CODEX, which offers a European digital infrastructure for secure cross-border communication in the field of justice. Recently (May 30th, 2022), the e-CODEX system became the digital backbone of EU judicial cooperation in civil and criminal matters on the basis of Regulation 2022/850. To achieve effective evidence exchange via EIO/MLA legal instruments, there must also be a communication tool. This is provided by the e-Evidence Digital Exchange System, which is capable of managing any EIO/MLA procedures/instruments, from the e-Forms (EIO Annexes) to the whole business logic, on the basis of the e-CODEX system. Finally, it is essential to use a uniform standard for the representation of evidence data and metadata, so as to streamline the process and make investigations more effective, in particular when it comes to complicated criminal cases where it is key to find either correlations among different cases or to extract multiple types of data from the same inspection. The importance of cross-border evidence exchange in criminal matters cannot be overstated. This book addresses all the above-mentioned aspects, offering an up-to-date overview of scenarios in cross-border judicial cooperation from both juridical and technical standpoints.

Frontmatter

Introduction: Setting the Scene on EIO and the Interaction Between Law and Technology

Abstract

The European Investigation Order (EIO) established by Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 represents a great step forward in cross-border judicial cooperation with regards to evidence gathering and exchange. The EIO allows judicial authorities to request evidence in a faster manner compared to the traditional instruments. However, the EIO is not the only pertinent legal instrument for attaining cross-border collection of evidence within the EU. Therefore, professionals need an unequivocal understanding of the situation: whether the use of an EIO is mandatory, and when evidence gathering abroad by means of an EIO is not achievable. This consideration highlights the importance of a systematic organisation of training courses in all Member States. From the technical point of view to accomplish the ambitious goal to exchange evidential material among judicial authorities in the EU Member States presupposes two essential components. First, it is fundamental having at disposal a secure communication channel for the evidence exchange and this is provided by e-CODEX, secondly, a communication tool is needed to speak to e-CODEX. This tool has been provided by the e-Evidence Digital Exchange System, developed and led by the European Commission. These technical components represent a major step forward in making judicial cooperation faster and more efficient. Within this scenario a package containing the evidential material might be exchanged as a simple attachment to any communication between the judicial authorities in the Executing and Issuing States. However, it is also crucial to use a standard for the representation of the data and metadata of the elements of evidence to streamline the process and make the investigations more effective. Standardising how cyber-information is represented addresses the current problem of investigators when they receive relevant information from different sources in a variety of formats. This Volume collects contributions that deal with the legal perspective relating to EIO, its technological perspective and the combination of the two as essential for the successful result of the new European judicial cooperation in the criminal field.

Maria Angela Biasiotti, Fabrizio Turchi

EU Legislation on EIO and Its Implementation in the Member States

Abstract

The EIO Directive is the core instrument for gathering evidence in the EU. It streamlined the process of obtaining evidence in criminal matters and imposed strict time limits for the implementation of the procedure. However, despite the efforts of the Member States, there are still significant differences that prevents the alignment of the professionals’ practices and full conformity with the EIO Directive’s principles throughout the EU. The present Chapter offers a glimpse to the difficulties in implementing the Directive.

Alexandra Tsvetkova

EU Initiatives on the Implementation of the EIO

Abstract

European Commission continuously assesses, takes appropriate measures to ensure conformity with and supports the implementation of the EIO Directive across EU, alongside the European Judicial Network, Eurojust and a number of research and academic organizations across EU. The present Chapter focuses on the EU initiatives and tools for conformity and effective application of the EIO Directive.

Alexandra Tsvetkova

The Challenging Path Towards the Establishment of the EU Legal Framework Regulating Cross-Border Access to Digital Evidence

Abstract

This article examines the most relevant steps of the legislative process towards the adoption of a legal framework of the European Union regulating cross-border access to electronic evidence. The point of departure is constituted by the origins and the main features of the Commission’s proposal for a regulation of the European Parliament and of the Council on European production and preservation orders for electronic evidence in criminal matters and the accompanying 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. The most relevant and controversial aspects of the General Approach of the Council on both draft instruments are outlined to provide an overview of the stands of the institution and the European Parliament Position’s is analysed to better understand its divergent approach to and critical views on the proposed legislation. Considerations on hurdles and challenges of the ongoing interinstitutional negotiations are presented to further highlight the complexity of the legislative process.

Teresa Magno

Evidence Exchange Under the EIO: Technological Challenges

Abstract

The European Investigation Order instrument offers a legal basis for exchanging evidence, in a digital manner, between competent authorities in different Member States of the European Union. The European directive explicitly sets out that the transfer of the evidence obtained by the executing authority shall be transferred to the issuing authority, without undue delay. The article illustrates how this goal can be accomplished using standards for the representation and the exchange of the Evidence in a cross-border scenario, having at disposal a secure platform for guaranteeing the confidentiality and the integrity of its content during the transfer.

Fabrizio Turchi

e-CODEX: A Secure Infra-Structure for Cross-Border Cooperation

Abstract

e-CODEX (e-Justice Communication via Online Data Exchange) is a way of communicating and collaborating cross-border in the area of the judiciary in Europe. It therefore provides technical components to be used for setting up national access points to connect to the e-CODEX network. The initial e-CODEX project was an ambitious and trend-setting project supposed to enable citizens and business entities in all of Europe to electronically communicate with the courts of other Member States in a secure and easy way in cross-border cases. In addition, it was supposed to enable electronic communication among judicial authorities of the Member States. The project was funded by the EU and had a volume of around EUR 25 million. As the e-CODEX project ended in May 2016, sustainability of e-CODEX (ongoing operation and maintenance also beyond the project term) is of major importance and should be warranted by way of a European agency. Until the project is operated and maintained by an existing European agency, the duties are being fulfilled by the bridging Me-CODEX projects. The European order for payment procedure has already been successfully set up as a pilot project for e-CODEX in Austria, Germany, Estonia, France, Greece, Italy, the Netherlands, Poland, Portugal, Spain and in the Czech Republic; the European small claims procedure, transmissions in the area of the commercial or business registers, administrative penalties, cross-border exchange of sensitive data regarding conventions on mutual judicial assistance and the European arrest warrant are other pilot projects currently running. e-CODEX has therefore already proven to be ready to support the electronic communication for the European Investigation Order procedure.

Thomas Gottwald, Martin Schneider, Robert Behr, Mathias Maurer

e-Evidence Digital Exchange System (eEDES)

Abstract

On the 9th of June 2016, the Justice Home Affairs Council adopted conclusions on improving criminal justice in cyberspace. In these conclusions, the Council requested from the Commission the creation of “a secure online portal” for the exchange of requests and responses in the context of judicial cooperation including electronic evidence. The Commission services started a consultation process with the Member States consisting in the creation of an Expert Group that discussed and agreed on the specifications of the system to be built. From the consultation with the Member States, a broad consensus emerged that the exchange platform should be based on e-CODEX. A majority of Member States requested the Commission to provide the online portal, as a “Reference Implementation”, which they could connect nationally to the e-CODEX network, in a “decentralised” set up. The European Commission started then the project of specifying and implementing the e-Evidence Digital Exchange System and its Reference Implementation Portal. The system was tested cross-border and will go live in 2022.

Djamila Ben Miloud, Cristian Nicolau

Evidence Exchange Standard Package: An Application CASE Ontology Complied for the Preparation of the Evidence Package and Its Exchange

Abstract

The evidence exchange is carried out through the eEDES communication tool, described in Chap. 6 and over the e-CODEX secure communication channel, described in Chap. 5. The evidence to be exchanged, packed in a secure transport envelope, the Evidence Package, needs to use a standard for the representation of its metadata and data. To illustrate how to handle and prepare the Evidence Package and foster its exchange in a secure manner under the above scenario, a fictional Use Case—inspired by a real investigative case—has been created.

Gerardo Giardiello, Fabrizio Turchi

Legal Framework for Digital Evidence Following the Implementation of the EIO Directive: Status Quo, Challenges and Experiences in Member States

Abstract

Currently, the leading legal instrument for the exchange of digital evidence within the European Union (EU) is the European Investigation Order (EIO), which will be digitised within the eEDES system. The EIO Directive 2014/41/EU was implemented to create a simpler, unified European framework on the collection of evidence within the EU, backed by the appropriate procedural and fundamental rights standards. In spite of this, there is still a lot of fragmentation in the legal framework as regards digital evidence, especially considering that the EIO does not apply to all countries equally or to the collection of all types of evidences equally. For EU states that have opted out of the EIO Directive, such as Ireland and Denmark, traditional Mutual Legal Assistance (MLA) legal instruments need to be relied upon.

The fragmentation is a result of a scattered legal framework which consists of national, European and international laws and regulations, bilateral agreements and multilateral agreements which all play a role in regulating the gathering, analysis and exchange of digital evidence. Countries cooperate by way of MLA in cross-border criminal cases and exchange digital evidence based on these instruments. The choice of instrument depends on the countries involved and the type of information needed. With the EIO now being the leading legal instrument for exchanging evidence, the choice of legal instrument for requesting evidence seems to be clearer. However, uncertainty about this legal instrument and the fact that some Member States have opted out of the EIO Directive are still challenging the exchange of evidence and leading to Member States relying on traditional MLA legal instrument. These MLA legal instruments are slower as they can take a long time to be executed. This can be problematic considering the volatile nature of digital evidence, which can easily be moved, altered or even deleted.

This Chapter is devoted to understanding the current legal framework for the exchange of digital evidence, including data protection considerations, and the challenges that come with it in the post-EIO implementation era. The focus of this Chapter will be on the European situation as the EIO Directive will be the central legal instrument discussed in this chapter. This Chapter combines the results of the INSPECTr project and the Evidence 2 E-codex project and also uses experiences from the TREIO project (For the INSPECTr project see https://inspectr-project.eu and INSPECTr Deliverable D2.1: Intelligence Network and Secure Platform for Evidence Correlation and Transfer, Deliverable D2.1, Initial Legislative compliance relating to law-enforcement powers and evidence requirements; For the EVIDENCE 2 E-codex project see: https://evidence2e-codex.eu and Deliverables D2.1 and D2.2: EVIDENCE2E-CODEX Deliverable D2.1, Linking EVIDENCE into e-CODEX for EIO and MLA procedures in Europe—Report on implementation of EIO; EVIDENCE2E-CODEX Deliverable D2.2, Linking EVIDENCE into e-CODEX for EIO and MLA procedures in Europe—Report on EIO and MLA; For the TREIO project see https://treio.eu, project ongoing.).

Melania Tudorica, Jeanne Mifsud Bonnici

Data Protection and European Investigation Orders

Abstract

Given that European Investigation Orders (EIOs) concern requests for information on an individual, multiple individuals and/or acts connected to those individuals, personal data is frequently processed as part of the request and execution of EIOs. Within the European Union (EU), the processing of personal data is enshrined in primary law, including fundamental rights law and in secondary law. This Chapter outlines the applicable EU data protection legislation that applies to the EIO processes when personal data is processed. In particular, this Chapter distinguishes between the application and scope of the General Data Protection Regulation in the ‘standard’ processing of personal data and of Directive 2016/680 which applies to the processing of personal data for the purposes of law enforcement in tackling crime. Moreover, data protection provisions applicable to the processing of personal data during the EIO procedure will be discussed in detail, including the definitions in data protection law, the principles of data protection and the rights of the data subject.

Nikolaus Forgó, Emily Johnson

Different Perspectives on EIO

Abstract

The Chapter is dedicated to give an overview of the representatives of the legal domain (Lawyers, EJTN Representatives) and the technical community (Digital Forensics and IT Experts) who are involved in the implementation of the EIO, in order to discuss with them the improvement and application of EIO across MSs and better understanding in practise the potential barriers and gaps existing in the different European countries. A survey has been conducted among different stakeholders involved in the EIO procedure: a tailor-made questionnaire has been circulated in order to catch the real situation going on in the different contexts and MSs.

Maria Angela Biasiotti, Sara Conti

Training on EIO: Overview of Training Courses in the EU

Abstract

A variety of training providers and initiatives deliver training courses on the European Investigation Order across EU. The present Chapter focuses on the European Judicial Training Strategy’s framework and the EIO-dedicated educational and awareness activities provided by EU-funded projects and EU-level training providers.

Alexandra Tsvetkova

Training on EIO: TREIO Project

Abstract

The EIO has been introduced by Directive 2014/41/EU in order to strengthen the judicial cooperation in EU in the criminal matters. The EVIDENCE2e-CODEX and EXEC Projects and the eEDES platform developed and led by the EC (DG Justice and Consumers) are currently working together to build up the secure and trusted infrastructure allowing the exchange of EIO forms and evidences between judicial authorities of the Member States. The e-Evidence Digital Exchange System (the System), developed under the e-Evidence Project, is the system that manages the EIO/MLA procedures/instruments: e-Forms, business logic, statistics, log, etc. The Reference Implementation is the front-end portal of the System and is also provided by EC. Both instruments use e-CODEX (the EU content agnostic e-Delivery infrastructure that supports cross- border e-Justice services) being the secure platform/infrastructure for evidence exchange. The EXEC project extends & strengthens some components of e-CODEX to manage the evidence exchange use case, EVIDENCE2e-CODEX provides the evidence packaging application. Although these operational tools allow the exchange of EIO forms and evidence, they are still under development and will be launched by Jan 2020. The research done between June 2018 and March 2019 across 16 Member States under these three projects showed that there is a specific need to generate the necessary awareness of the actors involved by properly disseminating information and knowledge about the procedures and the legal framework in which these procedures will be needed, to create a specific cross-border training for magistrates and court staff to understand, accept and finally promote the EIO forms exchange along the exchange of electronic evidence.

Maria Angela Biasiotti

Title: European Investigation Order
Editors: Maria Angela Biasiotti
Fabrizio Turchi
Publisher: Springer International Publishing
Electronic ISBN: 978-3-031-31686-9
Print ISBN: 978-3-031-31685-2
DOI: https://doi.org/10.1007/978-3-031-31686-9