The EU E-evidence Package from the Polish Perspective: High Time for a Systemic Change

The article focuses on the problems resulting from the adoption of Regulation (EU) 2023/1543 of the European Parliament and of the Council on European Production Orders and European Preservation Orders for electronic evidence in criminal proceedings and for the execution of custodial sentences following criminal proceedings. Once the Regulation enters into force (18 August 2026), national courts will be able to include data obtained as a result of issuing of a European Production Order and (at an earlier stage) a European Preservation Order in the case file and then assess their admissibility. The e-evidence package offers procedural authorities a tool to gather electronic evidence. At the same time, this package is silent about the way these evidence – so easily and quickly acquired from service providers in other Member States – should be treated by national courts. Meanwhile, this is the stage that is decisive for justice systems and may lead to numerous – both legal and practical – problems. Therefore, the article deals with the problem of how the e-evidence package looks from the Polish perspective and how Polish courts can admit electronic evidence into criminal trial. Furthermore, attention is drawn to the problem of direct application of this Regulation and the problem of equivalence of the powers of national authorities towards service providers residing in other states and service providers residing in Poland. In this area, an analysis of national legal framework is presented, the aim of which is to show whether there are currently adequate and equivalent legal grounds for issuing production and preservation orders in national law towards national providers. The analysis shows that several changes in the Polish law are necessary in order to secure and ensure the effective application of the Regulation.