Common EU Minimum Standards for Enhancing Mutual Admissibility of Evidence Gathered in Criminal Matters

Kusak, Martyna

doi:10.1007/s10610-017-9339-0

Cited by 8 publications

(6 citation statements)

References 16 publications

(10 reference statements)

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“…It also remains unclear whether European citizens would be allowed to challenge the evidence collection decisions through the Court of Justice of the European Union (CJEU) or national courts should they believe that their rights have been violated (Rojszczak, 2022;Siry, 2019). As with some other related European laws (Jesserand, 2018), there is also a question whether citizens should be notified about access to their data by LEAs during or after their investigations; currently, the notification mandates vary across the member states (Kusak, 2017). All in all, the implications of the e-evidence proposal are thus comparable to those of the CLOUD Act; the fundamental rights are potentially violated, and European LEAs should have access to both European and foreign cloud services according to this proposal, which, however, is still under policy-making in the European Union.…”

Section: Challenges Controversies and Responsesmentioning

confidence: 99%

Recent Trends in Cross-Border Data Access by Law Enforcement Agencies

Ruohonen¹

2023

Preprint

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Access to online data has long been important for law enforcement agencies in their collection of electronic evidence and investigation of crimes. These activities have also long involved cross-border investigations and international cooperation between agencies and jurisdictions. However, technological advances such as cloud computing have complicated the investigations and cooperation arrangements. Therefore, several new laws have been passed and proposed both in the United States and the European Union for facilitating cross-border crime investigations in the context of cloud computing. These new laws and proposals have also brought many new legal challenges and controversies regarding extraterritoriality, data protection, privacy, and surveillance. With these challenges in mind and with a focus on Europe, this paper reviews the recent trends and policy initiatives for cross-border data access by law enforcement agencies.

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Section: Challenges Controversies and Responsesmentioning

confidence: 99%

Recent Trends in Cross-Border Data Access by Law Enforcement Agencies

Ruohonen¹

2023

Preprint

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“…If investigative measures, like e.g. the interception of telecommunications, would have been (largely) harmonised as regards the offences for which they can be ordered (Kusak, 2016), there would have been no (or less) need for a provision as Article 11.1, under (h) EIO, which allows for non-recognition or non-execution where the use of an investigative measure ordered by an EIO is restricted under the law of the executing Member State to a list or category of offences or to offences punishable by a certain threshold which does not include the offence covered by the EIO. In the absence of trust-enhancing measures, such as Article 82.2 TFEU-based commonly agreed EU (minimum) standards for investigative methods, only a generic specialty principle may really prevent the use of MLA-obtained information or evidence for other offences than granted for.…”

Section: In Cauda Venenum?mentioning

confidence: 99%

Unblurring the Fuzzy Line Between Specialty and Data Protection in EU Mutual Legal Assistance After the European Investigation Order

Vermeulen

Kusak

2023

Eur J Crim Policy Res

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The purpose limitation principle takes a central place in data privacy law. The specialty principle plays a key role in international cooperation in criminal matters, including in the context of mutual legal assistance (MLA), which is aimed at the cross-border collection and use of information and evidence. Since the specialty principle also frames use limitations for information or evidence obtained through MLA and must therefore be considered a traditional MLA correlative of the purpose limitation principle in data privacy law, both concepts are clearly intertwined. However, since the entry into force of the European Investigation Order, and the EU Data Protection Directive 2016/680 for Police and Criminal Justice, it has become unclear how both principles interplay, and what that implies for the rights position of the data subject or person concerned. This paper unblurs the fuzzy line between specialty and data protection in the current EU MLA context. Based on historical and conceptual analysis, the paper unravels whether the new data protection provisions of the European Investigation Order and Directive 2,016,680 have speciality features and, if so, to which extent they effectively serve a specialty function. This paper does not only demonstrate that both principles do not fully equate with one another, but features an analysis of how they differ, both conceptually and functionally. It argues and concludes that only a fuller, generic specialty rule and data ownership principle have the potential to promote free movement of information and evidence, whilst equally enhancing the procedural rights position of persons concerned.

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“…Other comparative studies focused on evidence and procedural criminal law carried in the run-up to the establishment of a European Public Prosecutor's Office, those coordinated by the Max Planck Institute [4] and those coordinated [5] and edited by Katalin Ligeti in particular [6]. Other works put a more narrow emphasis on either specific procedural safeguards, such as the right to information [7], the right to translation [8], and the right to access to a lawyer [9], to name but a few, or those areas where the EU has only taken preliminary steps towards harmonisation, such as evidence law [10] and detention conditions [11]. Finally, a few authors analysed the challenges of implementing EU directives in national laws from the standpoint of individual Member States, such as France [12], Romania [13], Italy [15], and Portugal [16].…”

Section: Introductionmentioning

confidence: 99%

“…Thus, one of the promising directions of reforming the national criminal legislation of the EU member states is the environmental sphere, which is trending in the context of the implementation of the priorities of the "European Green Agreement". Recently (December 15, 2021), the European Commission presented a draft Directive on environmental protection by means of criminal law to replace the current Directive 2008/99/EC [11]. Among its key proposals is the expansion of the list of environmental crimes and strengthening of responsibility for their commission.…”

Section: Introductionmentioning

confidence: 99%

The Main Stages of Formation and Prospects of Harmonization of Eu Criminal Law

Gharaibeh¹

2022

PALR

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The basis of the article is the study of the topical issue of the formation of the criminal law of the EU countries through the convergence of the national criminal legislation of the EU member states, which is necessary to increase the effectiveness of the fight against organized crime and other socially dangerous acts that pose a threat to state security, public order, life and health. persons who are under the jurisdiction of the Union. The purpose of the article is to establish the main stages of the formation of EU criminal law. The main methods that were used in the research were methods of analysis and synthesis, as well as comparative analysis and historical analysis, which helped to achieve the goal of the research. Attention is drawn to the fact that EU law, which determines the standards for the development of national legal systems, acts as a tool for the convergence of the national law of the member states. At the same time, today "EU criminal law" is at the stage of slow formation due to existing differences in national criminal laws, national legal traditions and the unwillingness of countries to transfer their sovereign powers in the criminal law field for regulation at the EU level. The article confirms the heterogeneity of EU criminal law and highlights its following components: administrative and criminal law of the EU; norms of EU law relating to criminal law and process, which mainly require national criminal law systems to implement measures in a certain way; EU criminal procedural law; the draft norms of the unified European criminal law (Corpus Juris). The prospects for the development of the national criminal legislation of the states are determined, taking into account new challenges and threats, which determine the directions of convergence of the national criminal legislation of the member states.

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Common EU Minimum Standards for Enhancing Mutual Admissibility of Evidence Gathered in Criminal Matters

Cited by 8 publications

References 16 publications

Recent Trends in Cross-Border Data Access by Law Enforcement Agencies

Recent Trends in Cross-Border Data Access by Law Enforcement Agencies

Unblurring the Fuzzy Line Between Specialty and Data Protection in EU Mutual Legal Assistance After the European Investigation Order

The Main Stages of Formation and Prospects of Harmonization of Eu Criminal Law

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