International law enforcement and mutual legal assistance

Cross-border law enforcement is becoming increasingly important in the wake of globalization and digitalization. Especially in the areas of organized crime, terrorism, cybercrime, and money laundering, operations often take place internationally. Accordingly, law enforcement authorities are also relying on cross-border investigative and enforcement measures and international cooperation.

One of the central instruments in European mutual legal assistance is the European Arrest Warrant (EAW), which has been providing fast Arrest and transfer of persons between EU Member States Even after two decades and various court rulings on this issue – for example, the Federal Constitutional Court in 2005 as a result of a lawyer Gül Pinar Legal ambiguities still exist in this regard despite the successful constitutional complaint that annulled the then European Arrest Warrant Act due to a violation of Article 2 (1) in conjunction with Article 20 (3), Article 16 (2) and Article 19 (4) of the Basic Law. In 2019, the European Court of Justice (ECJ) ruled, following a request for a preliminary ruling under Article 267 TFEU, that the German public prosecutor's office did not meet the requirements of an independent judicial authority pursuant to Article 6 (1) of the Framework Decision on the EAW. The reason was that they were potentially subject to instructions from the executive. Therefore, public prosecutors in Germany are currently not permitted to issue European arrest warrants – this is the sole responsibility of independent judicial authorities. The issue is currently still the subject of legal policy debate; in 2024, the Federal Ministry of Justice presented a draft reform bill for the International Arrest Warrant Act.

With the 2024 adoption of E-Evidence Regulation was established by the European Union new legal instrument for more efficient cross-border evidence gathering in the digital space This makes it easier for law enforcement authorities to access digital evidence directly from the service providers. The involvement of the executing member state should only occur in exceptional cases, if the service provider refuses to release the data. A particular problem here is that private service providers are often unable to verify the legality of such orders that violate fundamental rights. The E-Evidence Regulation is therefore – and rightly so – highly controversial. The provisions of the regulation lead to the loss of data subjects' rights and exacerbate the problem of data retention. Furthermore, there are significant concerns regarding a lack of judicial review due to the lack of judicial review, a lack of fundamental rights protection for data subjects, and insufficient legal redress options.

The cross-border asset recovery aims to confiscate profits from organized and economically motivated crime – including from abroad. This involves not only traditional cases of money laundering or drug-related crime, but increasingly also cybercrime, corruption, or fraud, in which significant assets – such as crypto assets – are transferred via digital channels.

With the Directive on asset recovery and confiscation The European Union is pursuing the goal of harmonizing the previously highly fragmented regulations on asset recovery in the Member States. The key elements are the introduction of uniform standards for the confiscation, freezing, and management of assets. The definition of "assets" is broadly defined according to Article 3(2) of the directive; particularly with regard to crypto assets, this also includes assets that can be converted and transferred in order to conceal their origin. Article 13 of the directive also allows for confiscation from a third party to whom the proceeds or assets have been transferred directly or indirectly by the suspected or accused person. The directive must be transposed into national law by November 2026.

In this respect, too, the intended increase in the effectiveness of asset recovery raises significant legal concerns: In many cases, there is no effective procedure for reviewing the seizure measures. These measures are often non-transparent, implemented without consulting those affected, and offer only limited legal protection. The risk of interference with the property rights of uninvolved third parties – such as family members or business partners – is high, as the distinction between legal and illegal assets is often difficult to draw. Furthermore, different interpretations and procedures will continue to exist in the Member States; this concerns, for example, the requirements for initial suspicion or the (proportionate) duration of an arrest order.