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

of up to 2% of its total worldwide annual turnover in the preceding financial year (Art. 15:1 EPOR). 5. EPOs: Speed of proceedings versus fundamental rights and the rule of law From the very beginning of the works on the EPOR, both its general idea and certain of its provisions have been the subject of strong criticism due to the potential violation of fundamental standards of criminal procedure, in particular from the point of view of fair trial guarantees in relation to the rights of the suspect. The most common criticism of direct requests for disclosure of electronic evidence has been that, although they are based on the mutual recognition mechanism, they remove a crucial layer of control by the judicial authorities of the enforcing State, unlike traditional cross-border mutual legal assistance mechanisms. The elimination (or at least the limitation) of this principle of bilateral admissibility assessment, which has been repeatedly declared by the European Court of Justice to be one of the cornerstones of international cooperation in criminal cases, may lead to a lack of proper control of production requests from the point of view of their necessity and proportionality to the purpose of the case. 168 Another serious argument against the EPOs’ mechanisms is that they could lead to a general increase in surveillance, which, together with the relatively narrow group of persons protected by immunities, privileges and rules on the limitation of criminal liability that relate to the freedom of the press, could particularly affect independent journalists and political activists, especially in states suffering from deficiencies in the rule of law. 169 Aware of this threat, the EU legislator has included a number of safeguards in the EPO Regulation. Apart from the aforementioned right of objection of the addressees and the admissibility control carried out by the enforcing authority, the most important safeguards are the so-called information duty and effective remedies. According to EPOR Art. 13:1, the issuing authority shall without undue delay inform the person whose data are requested of the production of data on the basis of a European Production Order. However, this general rule is weakened by the following paragraph, according to which the issuing authority may delay, restrict or omit to inform the person whose data are requested to the extent and for as long as this constitutes a necessary and proportionate measure in a democratic society, i.e. to avoid obstructing official or legal inquiries, investigations or proceedings or to avoid prejudicing the prevention, detection, investigation or prosecution of criminal offences or the execution of criminal penalties. As a result, a person whose data has been requested through an EPdO may not even be aware of it until the very last stage of criminal proceeding and, consequently, may be deprived of the possibility to make use of effective remedies to protect his or her rights and freedoms. On the other hand, the person whose data are the subject of the Order may not be a national or even a resident of the EU Member State, 168 Albus V, ‘Fast-Tracking Law Enforcement at the Expense of Fundamental Rights’ ( Verfassungsbolg , 15 June 2023) . 169 Berthélémy C, ‘e-Evidence compromise blows a hole in fundamental rights safeguards’ ( EDRi , 7 February 2023) .

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