Digitalization Process of Judicial Cooperation in Criminal Matters: What Effects for Rule of Law and Human Rights?

The Criminal judicial cooperation has been characterized over time by the development of preventive and repressive mechanisms at both universal and regional level that are increasingly sophisticated, matching a new dimension of criminal offenses characterized by a digital-transnational dimension. This digitization process, still de jure condendo, would nevertheless seem capable of producing significant, both positive and negative, effects on rule of law, especially with respect to the human rights of citizens, or better, of individuals. For instance, the EU Commission’s Proposal for a Regulation on European Production and Preservation Orders as well as the Second Protocol to the Budapest Convention raised concern and suspect about the fairness of their mechanisms; whereas the CJEU and the ECtHR had, in multiple scenarios and cases, had to render judgments regarding the correct application of existing criminal judicial cooperation tools in the digital context in order to fairly protect individual fundamental rights. Hence, the aim of the hereby chapter will be to, first, account for the evolutionary process outlined, with a special view on the EU and the CoE. The outlining will look with particular attention into the new European legal framework as well as the existent caselaw (comprehensive of the principles stemming from it), yearning for the identification of discrepancies rights from the upcoming digitization of criminal judicial cooperation and of the impact on fundamental rights and rule of law.