Obstacles and Challenges in Obtaining Evidence at an Early Stage of an Investigation Carried out in Another Member State

Abstract

As the European Union has implemented the free movement of persons, goods, services and capital, borders for crime have also often disappeared, making cross-border evidence a decades-old issue in European criminal justice. This article identifies today's opportunities, legal tools, and their obstacles and challenges in obtaining evidence at an early stage of an investigation located in another Member State. The article focuses on the identification of problems in the practical application of the European Investigation Order, European Public Prosecutor's cross-border investigation tools and seeks to answer whether these problems will be resolved by the application of Regulation (EU) 2023/1543 (The e-evidence package) in 2026. In the context of the European Union's efforts to fight crime in a comprehensive manner and in line with the European Commission's Communication of 2008, that confiscation and recovery of proceeds are a powerful means for fighting organized crime effectively and its commitment to support the development of confiscation-related legislative and non-legislative measures1, alternative legal instruments to achieve the "crime does not pay" objective are also being developed, where obtaining evidence from other Member States is also a key issue. In response, the second part of this article analyzes the present-day possibilities of collecting evidence in one of these alternative processes, the civil asset confiscation process, which has its origins in the criminal process analyzed in the first part of this article.