Digital evidence in EU investigations, collection and preservation procedures defined

Final go-ahead of the Council of Ministers to the legislative decrees on the procedures for the collection and preservation of electronic evidence in judicial proceedings within the European Union. The topic concerns first of all the issuance of a European order for the production of electronic evidence in the context of the transposition of European Regulation 2023/1543. Thus, it is provided that the production order shall be issued by the court having jurisdiction to rule on the merits at the request of the public prosecutor, also made at the request of the offended person or his lawyer, or at the request of the person under investigation, the defendant, the private parties or their respective lawyers.

Prior to criminal prosecution and thus during preliminary investigations, the competence to issue the production order is instead divided between the judge and the public prosecutor, depending on the nature of the data subject to the order. That is, competence will lie with the gip when it concerns traffic or content data and with the pm when the data concern subscribers or are requested for the sole purpose of identifying the user.

In the presence of an emergency case, it is stipulated that, in the course of preliminary investigations, officers of thejudicial police may proceed before the intervention of the public prosecutor. According to the Rules, an emergency case is defined as a situation in which there is an imminent threat to the life, physical integrity or security of a person, or to a critical infrastructure, the damage or destruction of which would result in an imminent threat to a person, including through serious damage to the supply of essential goods to the population or to the exercise of the fundamental functions of the State.

In cases of emergency, the judicial police officers may issue an order to obtain the subscriber data immediately and then transmit it within forty-eight hours to the public prosecutor, who must decide on validation within the following forty-eight hours by means of a reasoned decree.

Space then is given to the decision ordering the preservation of electronic evidence with a view to a later production request: a European preservation order may cover all offences, provided that it could be issued under the same conditions in a similar domestic case; the execution of a custodial sentence or a detention security measure of at least four months, imposed following criminal proceedings with a decision not pronounced in absentia, in cases where the convicted person is a fugitive.