EU E-Evidence Package and Digital Evidence in Polish Criminal Trials: Practical Guide for Foreign Defendants

Cross-border criminal investigations in the European Union increasingly rely on digital evidence: emails, messaging apps, cloud storage, social media and server logs. For foreign defendants in Poland, this rapidly evolving landscape can be both opaque and intimidating. The upcoming EU E‑Evidence Package adds another layer of complexity, reshaping how prosecutors and courts in Poland will collect, admit and assess electronic data in criminal proceedings.

This article provides a structured, practice‑oriented overview of how digital evidence in Polish criminal trials is obtained and used today, and how it is likely to be affected by the EU E‑Evidence Regulation and Directive. It is aimed at international readers – in‑house counsel, foreign defence lawyers, compliance officers and individuals facing proceedings in Poland – who need a clear explanation of rules, risks and defence strategies, without national jargon.

Drawing on experience in complex white‑collar crime, cross‑border investigations and protection of personal rights, the author focuses on the intersection between Polish criminal procedure, EU instruments and the practice of law enforcement. The goal is practical: to help foreign defendants and their advisors understand the procedural framework, identify vulnerabilities, and make informed decisions in cases involving digital, cloud and communication data.

What is “digital evidence” in Polish criminal procedure?

Under Polish criminal law, digital evidence is not defined in a single provision, but in practice covers any information of evidential value stored or transmitted in electronic form. This includes not only the obvious – emails, chat histories, documents, spreadsheets – but also metadata, IP logs, geolocation data, CCTV recordings, and system logs generated automatically by IT infrastructure.

The Polish Code of Criminal Procedure (Kodeks postępowania karnego, “CCP”) adheres to the principle of free evaluation of evidence. As a result, electronic data is in principle admissible on the same footing as traditional paper documents or witness testimony, provided it is obtained legally and its integrity can be demonstrated. The key practical question is therefore not whether digital evidence is allowed, but whether the manner of its acquisition and preservation withstands judicial scrutiny.

For foreign defendants, this broad concept of digital evidence means that data generated and stored outside Poland – for example, on servers in Ireland, Germany or the United States – can become central to a Polish criminal case. Cloud‑based services and cross‑border data flows make territorial boundaries legally and technically porous, which is exactly the policy context in which the EU E‑Evidence Package has been developed.

EU E‑Evidence Package – what does it change for Polish cases?

The EU E‑Evidence Package consists primarily of an EU Regulation establishing European Production Orders (EPOC) and European Preservation Orders (EPOC‑PR), as well as a Directive on the appointment of legal representatives by service providers. Its objective is to enable judicial authorities in one Member State to directly request electronic evidence from service providers offering services within the EU, regardless of where the data is stored.

For Polish criminal trials, this means that prosecutors and courts will be able to seek electronic evidence directly from major providers – email, messaging, social media and cloud – in other Member States, subject to procedural safeguards defined by EU law. Conversely, foreign prosecutors will be able to issue EPOCs addressed to providers in Poland, which may then feed into proceedings conducted before Polish courts.

For foreign defendants, the practical consequence is a significant reduction in friction related to cross‑border evidence gathering. Mutual legal assistance, often slow and opaque, is partially replaced by a more streamlined EU mechanism. This increases the likelihood that data held abroad – for example, business communications or corporate records – will be successfully obtained and used in Polish proceedings, while also raising new questions about the protection of fundamental rights and procedural defence.

How is digital evidence currently obtained in Polish criminal investigations?

Before full application of the EU E‑Evidence Regulation, Polish law enforcement relies on a combination of national procedural tools and international cooperation instruments. Domestically, the CCP provides for searches of premises and IT systems, seizure and copying of data carriers, and orders directed at service providers to disclose traffic and subscriber data under judicial control.

When data is located abroad, prosecutors typically resort to Mutual Legal Assistance (MLA) mechanisms, including the European Investigation Order (EIO) within the EU. These channels are time‑consuming and depend on the cooperation of authorities in the executing State. In practice, this may lead to significant delays, partial execution or even refusal, especially where fundamental rights concerns arise.

In parallel, some providers based outside the EU operate voluntary law enforcement portals, responding to properly framed requests under their terms and applicable foreign law. This creates an additional, sometimes under‑regulated, avenue for obtaining digital evidence that defence counsel should carefully examine for compliance with both Polish and EU standards, including privacy and data protection principles.

Admissibility of e‑evidence in Polish criminal trials: key principles

The CCP is built around the principle that courts independently assess the credibility and significance of each piece of evidence. There is no closed catalogue of admissible evidence; digital evidence is treated functionally rather than formally. However, the method of its acquisition must comply with procedural rules and constitutional guarantees, notably the right to a fair trial and the right to privacy.

Certain violations – such as evidence obtained through prohibited methods (e.g. violence, illegal interception) – may result in exclusion or serious weakening of its probative value. In cases involving electronic communications, courts pay particular attention to whether interception or data retention complied with statutory conditions and whether there was adequate judicial oversight.

The forthcoming EU E‑Evidence framework will not replace national admissibility rules, but will shape how evidence is gathered. Defence in Polish trials will need to examine both compliance with EU‑level requirements (for example, scope and proportionality of orders) and conformity with domestic procedural safeguards when challenging the admissibility or weight of digital evidence obtained via EPOCs or EPOC‑PRs.

Authentication and integrity: how do courts in Poland verify digital data?

One of the central questions for any court dealing with digital evidence is whether the data is what it purports to be, and whether it has been altered. In Poland, authentication typically combines technical analysis with contextual assessment – log structures, system architecture, chain of custody documentation and corroborating testimony.

In many cases, IT forensics experts are appointed to examine seized devices, cloud accounts or server images. Their tasks include securing bit‑by‑bit copies, using checksums or hash values to demonstrate integrity, and preparing reports suitable for judicial assessment. Defence has the right to request supplementary opinions or independent expert review, which can be crucial in complex white‑collar or cybercrime matters.

For foreign defendants, it is important to understand that courts give considerable weight to whether forensic procedures were followed from the moment of acquisition. Early engagement of technically competent defence experts, working alongside legal counsel, often determines whether irregularities – incomplete imaging, selective extraction, missing logs – can be identified and effectively exposed during trial.

Cross‑border data access: what will change with European Production Orders?

Under the EU E‑Evidence Regulation, a Polish judicial authority will be able to issue a European Production Order directly to a service provider’s legal representative in another Member State, obliging it to produce specified categories of data (subscriber data, access logs, transactional and content data) within strict deadlines.

This bypasses the traditional requirement of routing requests through authorities in the executing State, significantly accelerating access to cross‑border data. At the same time, it raises intricate issues of conflict of laws and fundamental rights protection, particularly where data relates to individuals who are not EU residents or where disclosure may expose persons to liability in third countries.

From a defence perspective, the main challenge will be information asymmetry: defendants may not be promptly informed that an EPOC has been issued for their data. Lawyers involved in Polish criminal trials with international dimensions should therefore actively inquire into possible EPOCs and insist on disclosure of related documentation to enable review of necessity, proportionality and compliance with both EU and domestic standards.

Rights of foreign defendants in Poland in cases involving e‑evidence

Foreign defendants in Poland enjoy the same procedural rights as Polish citizens, anchored in the Constitution of the Republic of Poland, the CCP and EU instruments such as the Charter of Fundamental Rights and the directives on procedural rights (including the right to interpretation and translation, access to a lawyer, information in criminal proceedings).

In the context of digital evidence, these rights translate into the ability to contest the legality of evidence collection, request exclusion of improperly obtained material, seek independent expert analysis, and cross‑examine prosecution experts and witnesses about the origin and processing of electronic data. Timely access to the case file, including technical annexes and correspondence related to international cooperation, is essential.

Because e‑evidence often involves multiple jurisdictions and service providers, foreign defendants may face linguistic and legal barriers. Representation by defence counsel experienced in cross‑border white‑collar crime and familiar with both Polish procedure and EU e‑evidence instruments is therefore not a formality, but a practical necessity to ensure that rights on paper are effectively realised in practice.

Strategic defence considerations in white‑collar cases with digital evidence

In modern white‑collar crime cases – fraud, corruption, market abuse, tax offences – digital traces often form the backbone of the accusation: email chains, financial system logs, messaging apps, electronic signatures. A defence strategy that treats electronic data as “objective truth” is inherently risky; instead, the focus should be on methodology, context and alternative explanations.

Key defence steps include: mapping all potential sources of digital evidence (including those not yet secured by the prosecution), assessing collection methods, identifying gaps or inconsistencies, and considering whether additional data (for example, complete server logs or backup archives) could actually support the defence narrative. It is often as important to show what is missing as what is present in the file.

Law firms such as Kopeć Zaborowski Adwokaci i Radcowie Prawni, with established practice in digital forensics‑heavy litigation and cross‑border investigations, are well positioned to coordinate such comprehensive defence strategies. International clients benefit from coordinated engagement of forensic specialists, local counsel in other jurisdictions, and data protection experts to ensure that all layers of the case – technical, procedural and regulatory – are addressed coherently.

Data protection, privacy and proportionality in e‑evidence gathering

The acquisition and use of digital evidence in Poland does not occur in a legal vacuum. It is constrained by constitutional privacy rights, the GDPR where personal data processing is involved, and sector‑specific rules, as well as by the principle of proportionality under EU and Polish law. Courts increasingly expect prosecutors to justify the scope of data requests and retention periods, especially in large‑scale data seizures.

The EU E‑Evidence Package also incorporates safeguards, such as limitations on the categories of offences for which certain intrusive data can be requested, and mechanisms for challenging orders that would be manifestly abusive or contrary to fundamental rights. However, the effectiveness of these safeguards will depend heavily on how actively defence counsel raise objections and how rigorously courts review the necessity and proportionality of data access.

For foreign defendants, a coordinated approach that integrates criminal defence and data protection expertise can be particularly valuable. Arguments based on privacy and data minimisation often resonate with courts and can lead to exclusion or restricted use of certain data sets, especially where mass collection has occurred without narrowly tailored justification.

Practical recommendations for foreign defendants and their counsel

In light of the evolving framework of the EU E‑Evidence Package and the central role of digital data in Polish criminal trials, foreign defendants and their advisors should consider several practical steps:

• Engage Polish defence counsel with proven experience in digital evidence and cross‑border investigations at the earliest stage.
• Conduct an internal mapping of potentially relevant electronic data and assess retention, deletion and litigation hold policies.
• Coordinate with IT and compliance teams to preserve data that may be exculpatory, including logs and backups.
• Request full disclosure of all technical documents, orders and international requests related to e‑evidence collection.
• Consider commissioning independent forensic analysis to verify the prosecution’s findings.

For corporations and individuals exposed to investigations with a Polish and EU dimension, tailored legal support is indispensable. Kopeć Zaborowski Adwokaci i Radcowie Prawni advise and represent foreign clients in complex white‑collar and digital‑evidence cases before Polish courts and authorities, combining domestic procedural expertise with an in‑depth understanding of EU instruments such as the EIO and the emerging E‑Evidence regime.

As the EU E‑Evidence Package becomes operational, strategic anticipation rather than reactive defence will be the key to managing legal risk, protecting rights and navigating the interplay between national proceedings and cross‑border data flows.

Outlook: alignment of Polish practice with the EU E‑Evidence framework

Implementation of the EU E‑Evidence Regulation and Directive will require adjustments in Polish legislation, institutional practice and judicial training. Service providers offering services in Poland will need to appoint legal representatives and establish workflows for timely and lawful response to EPOCs and preservation orders, while prosecutors and courts will have to integrate new templates and safeguards into their daily work.

For the defence community, the transition period offers both challenges and opportunities. Close monitoring of implementation, participation in consultations and systematic litigation of test cases will shape how the abstract safeguards of the E‑Evidence Package translate into concrete protection for defendants in Polish criminal trials. International cooperation between defence lawyers in different Member States will become increasingly important.

Ultimately, the effectiveness and fairness of the new regime will depend less on the text of the Regulation and more on its practical application. In that evolving environment, experienced counsel with a solid grasp of digital evidence, EU criminal cooperation and fundamental rights will be indispensable partners for foreign defendants navigating proceedings in Poland.

References / Bibliography

• Code of Criminal Procedure of the Republic of Poland (Kodeks postępowania karnego).
• Constitution of the Republic of Poland.
• Charter of Fundamental Rights of the European Union.
• Directive (EU) 2014/41 regarding the European Investigation Order in criminal matters.
• 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 (EU E‑Evidence Regulation).
• Directive (EU) 2023/1544 on the appointment of legal representatives for the purpose of gathering electronic evidence in criminal proceedings.
• Regulation (EU) 2016/679 (General Data Protection Regulation – GDPR).
• European Commission, “E‑evidence – cross‑border access to electronic evidence,” official information materials and impact assessments.
• European Union Agency for Fundamental Rights (FRA), reports on surveillance, data protection and fundamental rights in the context of criminal justice.
• Practice and case law of Polish courts concerning admissibility and assessment of electronic evidence (orzecznictwo sądów powszechnych i Sądu Najwyższego).