On November 30th FRC members Andreas Kanakakis presented his paper ‘The collection of evidence in the EU: mutual trust and mutual mistrust’ during the European Criminal Law Academic Network’s Graduate Conference (ECLAN Graduate Conference: The future of European Criminal Law), held at University of Liverpool (30th November - 1st December).
Abstract
The process of the European integration has been long and complex, leading to the establishment of a new world with open borders, where security and justice prevail. The vision of an economic union has evolved into a unified mindset that runs through all areas of human activity, including mutual legal assistance in criminal matters.
Cooperation in the conduct of investigations and the gathering of evidence has always been an endeavour ofthe states seeking to facilitate access to evidence beyond their national borders in the pursuit of truth. The transition from the traditional model of judicial cooperation to the consolidation of the principle of mutual recognition, which underpins the current framework for investigations and evidence gathering, has been the product of an extensive process involving the codification of fragmented rules and harmonisation of national laws among EU Member States.
Despite the intensive efforts of the Member States, the aspiration to combine fast and efficient procedures for carrying out investigative measures and transmitting evidence with the utmost protection of the fundamental rights of the person concerned could not be fully realised, even with the adoption of the Directive 2014/41/EU regarding the European Investigation Order. Nearly a decade after the implementation of an enhanced system of legal assistance, EU Member States now find themselves confronting an escalating crisis of trust amongst them, along with a gradual regression in adherence to the principles of the rule of law and the separation of powers.
At the same time, the entry of both substantive and procedural criminal law into the digital era demands that Member States intensify cooperation in the fight against new – digital – forms of cross-border crime and the collection of evidence for this purpose. Although EU has already begun to envisage and shape a common legislative policy, its enforcement seems to rest with the individual Member States and their intentions.