Models of cross-border evidence gathering in European Union criminal law

In: https://freidok.uni-freiburg.de/data/175169

Abstract

The goal of the research is to analyze and evaluate different applied and proposed models of cross-border evidence gathering in European Union criminal law. Its starting hypothesis is that European Union Criminal Law needs a model of cross-border evidence gathering that is going to take into account and adequately balance the interests of all the actors involved in the process of cross-border evidence gathering: the cooperating States, the individual affected, and the EU. Primary object of the analysis and evaluation are the traditional cooperation model – mutual legal assistance model, and the modern, EU specific, model – mutual recognition model. Next to them, other proposed alternative models of cross-border evidence gathering are also analyzed and evaluated. In order to achieve its goal, the research uses the following methods which are characteristic for legal sciences: the theoretical method, the normative method, the comparative method, and the case study method. Theoretical method is used to provide a better understanding of the historical background and the main principles of different models. The normative method is used in order to analyze the provisions of the legal instruments which govern the area. When the normative analysis is conducted, the respective legal instruments are looked at from three different perspectives: the position of the requesting/issuing State, the position of the requested/executing State, and the position of the individual concerned. The comparative method is used to present the differences between the models. The case study method is used in order to analyze the practical functioning of the models. The result of the research can be summarized as follows: 1. the traditional cooperation model – the mutual legal assistance model - can not answer the challenges posed before cross-border evidence gathering by the increase of transnational criminal activities, 2. the mutual recognition model is a better solution, both on the theoretical, and on the normative level, because it is more successful in balancing the interests of all the actors involved in the process; 3. the mutual recognition model would function much better in the surrounding of harmonized national criminal laws, 4. it is also possible to develop the elements of a supranational legal order in the selected areas, 5. different models can be applied and combined at the same time.