Digital forensic EVIdence: towards Common European Standards in antifraud administrative and criminal investigations

DEVICES aims at developing a comparative research project on the rules for conducting digital forensic operations in antifraudadministrative and criminal investigations.

Digital technology, with its globalized dimension, represents today a challenging factor that still founds no adequate responses innational or supranational legal frameworks, a context that risks to undermine the efficiency of most investigation, both administrative and criminal, and to sensibly reduce the scope of defence rights and guarantees. Member States struggle to establish technical and legal rules able to guarantee the integrity of digital evidence and secure its admissibility both in domestic and in transnational proceedings (a profile now even more pressing in light of Directive 2014/41 onthe European Investigation Order) as well as effective paradigms for the defence rights. In this context, patchy and unclear set of rules make the management of gathered digital evidence difficult and often unpredictable. That also exacerbates the enormous deficiencies existing in evidence sharing rules that connect administrative to criminal investigations in the antifraud matter (and not only in the latter).

Against this background, DEVICES investigates from a multidisciplinary and transnational perspective on three main profiles of digital forensic operations:

(i) Rules to ensure the integrity and the chain of evidence (also when data are stored in the cloud), and safe storage of theinformation collected; a special focus will be put on the authenticity of evidence collected in relation to its admissibility in light ofthe proposal to amend Regulation 883/2013;

(ii) Rules to ensure an effective exercise of defence rights (exam of digital evidence, documentation of the operation, potentialparticipation of the defence, identification of effective remedies including the prompt destruction of irrelevant or disproportionate information);

(iii) Rules on the use and assessment of digital evidence at trial.