CROSS-BORDER ACCESS TO ELECTRONIC EVIDENCE IN MONEY LAUNDERING PROCEEDINGS: THE SECOND ADDITIONAL PROTOCOL TO THE BUDAPEST CONVENTION AND THE EU E-EVIDENCE PACKAGE

Abstract

The purpose of the article is to analyse the content and practical significance of the Second Additional Protocol to the Budapest Convention (the «Second Additional Protocol»), Regulation (EU) 2023/1543 of the European Parliament and of the Council (the «Regulation (EU) 2023/1543») and Directive (EU) 2023/1544 of the European Parliament and of the Council (the «Directive (EU) 2023/1544») for improving the mechanism of collecting electronic evidence in criminal proceedings related to the legalisation (laundering) of proceeds of crime, and to substantiate the necessity of taking these acts into account in the national legislation of Ukraine. In addition, the article analyses selected recent European Union legal acts governing the use of electronic evidence in the fields of anti-money laundering and crypto-asset regulation. Methods. The study is based on the formal-legal method for analysing the content of international legal acts, the comparative-legal method for correlating the provisions of Council of Europe and European Union law with the current criminal procedural legislation of Ukraine, and systemic analysis for determining the interrelation between the instruments examined and their cumulative significance for law-enforcement practice. Results. It has been established that the Second Additional Protocol introduces (according to the author’s generalised model) three subject and procedure-differentiated levels of cooperation, of which only the first, direct requests to service providers for subscriber data, allows the mutual legal assistance procedure to be avoided entirely, whereas traffic data and content data remain subject to a separate, albeit simplified, procedure. It has been determined that the three-year custodial threshold set by Regulation (EU) 2023/1543 for access to traffic and content data is, as a general rule, met for the offence of money laundering given the minimum penalty requirements of Directive (EU) 2018/1673 of the European Parliament and of the Council (the «Directive (EU) 2018/1673»), although the application of the Regulation additionally depends on the legal classification of the act, judicial authorisation, and the proportionality of the interference. Legal uncertainty has been identified regarding the application of the Regulation to virtual asset service providers, which requires a separate solution. Conclusions. The necessity is substantiated of accelerating Ukraine’s ratification of the Second Additional Protocol as the most directly applicable instrument, taking into account the procedural standards of European Union law when improving the Criminal Procedure Code of Ukraine, and examining the possibility of introducing a national analogue of the institution of a representative for the purpose of gathering electronic evidence in respect of service providers operating in Ukraine.