New Technologies in International Law / Tymofeyeva, Crhák et al.

2.2 E uropean P roduction O rders and E uropean P reservation O rders – N ew I nstruments of E nhanced J udicial C ooperation or a T hreat to H uman R ights and the R ule of L aw Introduction The modern world is increasingly dependent on the use of digital technologies, in particular the Internet and ICT services. A natural consequence of this is the observed rapid growth of the phenomenon of cybercrime, which is currently one of the most serious threats to individual legally protected interests and to the legal system in general. This situation is particularly noticeable in judicial and prosecutorial practice. The specific nature of cybercrime means that more and more evidence of crime exists or is stored only in electronic form in IT systems. However, these systems are often under the jurisdiction of a State other than that in which the criminal proceedings take place. This, together with the need for immediate preservation of evidence, often makes it difficult or impossible to obtain evidence through traditional mutual legal assistance (MLA). The urgent need to introduce new measures to enable judicial authorities to quickly obtain evidence through cross-border cooperation mechanisms, including direct requests to foreign digital service providers, which has been raised by criminal law doctrine and practitioners 155 has also been recognised in the fora of international organisations, which have made numerous efforts in this area. The first success in this field was the adoption of Protocol II to the Budapest Convention on Cybercrime in 2021. Considered as a strong impulse for the existing international judicial cooperation framework 156 , its adoption has turned out to be only a partial success, as the regulation is still waiting to enter into force, due to the fact that, as of October 2023, only two states (Japan and Serbia) had decided to ratify it. However, the legislative activity of the European Union proved to be more effective and ended with the adoption of the Regulation of the European Parliament and of the Council on European Production Orders and European Preservation Orders (hereinafter: EPOR) on 12 July 2023. 157 By Marcin Gudajczyk (University of Warsaw)

155 See: European Union, Council of Europe and Eurojust, ‘International conference on Judicial Cooperation in Cybercrime Matters’ (7-8 March 2018) . 156 Spiezia F, ‘International Cooperation and Protection of Victims in Cyberspace: Welcoming Protocol II to the Budapest Convention on Cybercrime’ (2022) 23(1) ERA Forum 101. 157 Regulation (EU) 2023/1543, OJ L 191/118, European Parliament and Council, 12 July 2023.

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