Conservazione e produzione della prova digitale nella nuova disciplina europea: il potenziale disallineamento con i principi espressi dalla giurisprudenza di settore

• Stefano Busillo ^[1]
  1. [1] University of Salerno

     University of Salerno

     Fisciano, Italia

     
• Localización: Freedom, Security & Justice: European Legal Studies, ISSN-e 2532-2079, Nº. 3, 2023, págs. 27-62
• Idioma: italiano
• Títulos paralelos:
  • Production and preservation of digital evidence in the new european legal framework: The potential misalignement with the principles expressed in the sectoral case law
• Enlaces
  • Texto completo (pdf)
• Resumen

  • This contribution takes a look at judicial cooperation in criminal matters, which has long been pursuing a regulatory adjustment aimed at having new mechanisms suitable for a speedy and prompt transmission of so-called digital evidence. The latter, not surprisingly, reveals its own complexity that resides, among other characteristics, in its “private” nature, as well as in the risks related to the violation of the fundamental rights involved, among which privacy stands out in particular. In this regard, European legislation has responded decisively to the need for direct dialogue with providers, i.e. those directly involved in the traffic of data of interest to the judicial authorities of the continent. So much so that, with the intention of overcoming the limits of traditional instruments, the European Union and the Council of Europe adopted, respectively, Regulation (EU) 2023/1543 on the European order for the production and preservation of digital evidence in criminal matters and, in 2021, the Second Protocol to the Convention on Cybercrime. Although formally the new European regulation is conditional on not causing undue interference in the rights of the individual, this contribution aims to highlight that, from a comparison with the jurisprudential practice on data retention and mass surveillance, significant inconsistencies do in fact emerge. In particular, the analysis aims to demonstrate that the analogical application of the principles of necessity and proportionality to the newborn Regulation and to the Second Protocol of the Budapest Convention – as understood by the Court of Justice of the European Union and the European Court of Human Rights – would lead to an excess of "privatization" in the matter as well as to the presence of “variable geometries” in the protection offered to individuals.