La récolte transfrontière de preuves électroniques dans le contexte européen : construction d'un modèle à l'aune d'une nouvelle conception de la souveraineté des Etats
(2020)
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- Authors
- Supervisors
- Beernaert, Marie-Aude
- Abstract
- The research examines the collection of electronic evidence by law enforcement authorities of European Member States, taking into consideration the implications it may have on the State sovereignty, given the specific nature of such evidence. Several instruments of judicial cooperation are considered (the Budapest Convention on Cybercrime and the European Investigation Order established by Directive 2014/41/UE), as well as unilateral practices developed by States, particularly Belgium and, for comparative purposes, by the United States. The research also takes into consideration the proposal for the regulation on European production and preservation orders for e-evidence in criminal matters and the proposal for a second Protocol to the Budapest Convention. Both instruments were still under negotiation at the time of the conclusion of the research. The main focus of our analyze was to highlight the connecting factors laid down in these regulations (if any), as well as, more generally, the way in which they ensure (or not) respect for the sovereignty of third countries when the law enforcement authorities in charge with a criminal investigation collect electronic evidence. The analysis of these regulations revealed their weaknesses, both in terms of effectiveness and respect for the sovereignty of States. The conclusions of the doctoral research are formulated in the form of a proposal for a model regarding the collection of electronic evidence in order to face theses weaknesses. This model is based on a new conception of State sovereignty, which overcomes the opposition between the notions of territoriality and extraterritoriality. It proposes to retain the concept of "territorial extension", so as to better describe the act of investigative authorities when they collect electronic evidence without having to leave the national territory. The extension of their investigative powers beyond the borders must nevertheless go along with connecting factors and a notification of the affected State(s), so as to maintain the balance right between the effectiveness of their intervention and the respect for the third state sovereignty.
- Affiliations
Citations
Giacometti, M. (2020). La récolte transfrontière de preuves électroniques dans le contexte européen : construction d’un modèle à l’aune d’une nouvelle conception de la souveraineté des Etats. https://hdl.handle.net/2078.5/248088