New Area of Judicial Cooperation on Criminal Matters in the European Union: The Transmission of Electronic Evidence between Member States

Abstract

The digitalisation of justice aims to facilitate access to justice, improve overall efficiency and ensure the resilience of justice systems in times of crises, such as the COVID-19 pandemic. Regarding criminal proceedings, the need for digitalisation is made even clearer by the modernization of crime, its partial digitalisation and its cross-border nature. It also follows from the international nature of the digitalisation challenges that the need to meet them cannot be reduced to the level of national law enforcement but is also reflected in the framework of criminal cooperation between the Member States of the European Union. In this context, a new challenge for the digitalisation of justice is the exchange of electronic evidence. The European Union has adopted a Regulation on European Production Orders and European Preservation Orders aimed on the exchange electronic evidence between Member States. This Regulation shall be applied from 18 August 2026. The Regulation prescribes that written communication between competent authorities and designated establishments or legal representatives shall be carried out through a secure and reliable decentralised IT system. However, the Regulation does not regulate execution issues related to the transmission of electronic evidence. Thus, there is a risk that the service providers will carry out official requests through insecure communication channels, even though the European Union already has platforms that are suitable for the transfer of evidence. The aim of this paper is to present the specifics of the legal and technical platforms already used by the European Union in this field and to be introduced in the future. The article also examines the relevant legal background related to the operation of these platforms.