The ECBA Cybercrime Working Group proposes to launch a project on the harmonisation of national rules on the admissibility of digital evidence in criminal proceedings.
Current practice shows major divergence across Member States: while some systems provide for strict exclusionary rules, others, such as Germany, lack enforceable remedies against unlawfully obtained evidence, meaning objections are often only decided at cassation level and exclusion is extremely rare. The handling of large-scale encrypted communications investigations, such as Sky ECC and EncroChat, illustrates these discrepancies: courts across Europe have taken markedly different positions on whether and how such data may be used in criminal proceedings.
Against this background, and in light of the Commission’s stated interest in common standards, the Working Group proposes to develop minimum EU-wide rules governing the collection and admissibility of digital evidence and effective mechanisms to enforce prohibitions on its use. Such standards are essential to ensure proportionality, legal certainty, and the protection of fundamental rights in an increasingly digital justice environment.
Coordinators
Stefanie Schott is a criminal defence lawyer based in Frankfurt with a focus on transborder and international investigations, such as EPPO cases, which almost always involve digital evidence and questions concerning the collection and use of such evidence.
She works as an expert in various national and international lawyers committees, where she comments on draft legislation and works on guidelines, among other things.
Julian Hayes is an experienced criminal defence lawyer practising in London. He is an expert in surveillance and data protection law, and advises on law enforcement demands for data, the use of new technologies for investigative purposes, and the enforcement of data rights and obligations.