Proceedings of the 5th International Conference on Future of Social Sciences and Humanities
Electronic Evidence and Data Protection in The European Union
Dr. Adriana-Iuliana Stancu, Dr. Mihaela Agheniței
The second additional protocol to the Cybercrime Convention on enhanced cooperation and the disclosure of electronic evidence (hereinafter referred to as the “protocol”) was adopted by the Committee of Ministers of the Council of Europe on 17 November 2021 and opened for signature on 12 May 2022.
Recommendation and Objectives: The provisions of the Protocol fall within an area largely governed by common rules within the meaning of Article 3(2) of the Treaty on the Functioning of the European Union (TFEU), including instruments facilitating judicial cooperation in criminal matters and ensuring minimum standards of procedural rights, as well as data and privacy protection.
Proposal and Methodology: The Commission has also presented legislative proposals relating to a regulation on European orders for the disclosure and preservation of electronic evidence in criminal matters and a directive establishing harmonized rules on the appointment of legal representatives for the purpose of obtaining evidence in criminal proceedings, introducing mandatory cross-border European disclosure and retention orders for electronic evidence that must be addressed directly to a representative of a service provider in another Member State.
Results, Discussions, and Implications: Romania, as a member state of the European Union, effectively participates in the settlement of cross-border cases, transposing the provisions of the Convention to the concrete situations of computer crime. However, there are still problems that can be overcome, even with the restriction on the right of defense regarding interceptions in criminal files.
keywords: protocol, convention, electronic evidence, right to defense, criminal files