International review of criminal policy - Nos. 43 and 44/Concluding remarks and suggestions
- G. Concluding remarks and suggestions
281. In coping with the increase in transborder computer-related transactions, it is clear that a set of solutions elaborated by the international community represents an effective response. The problems predictable in confrontations among different States, whether common to all transborder crime situations or specific to computer crimes, require well-regulated solutions. Whether the problems are related to multiple jurisdiction conflicts, of a positive or negative nature, or to the requirements of mutual cooperation agreements, it is suggested that States should elaborate explicit rules to solve them.
282. Problems of concurrent jurisdiction based on the principle of territoriality are likely to be the most difficult to solve. Criminal law and jurisdictional questions are still integrated in national policy, and the implementation of that policy remains exclusively in the hands of the sovereign State.
283. Rather than seeking a solution through a conventional classification of priorities, a more effective action might be to develop a mechanism for mutual consultation and for allocating responsibilities on a case-by-case basis. A procedure for settling jurisdictional disputes by a body of experts knowledgeable in both jurisdictional issues and computer crime could also by developed. This could provide a speedy and flexible alternative to existing dispute-resolution mechanism, such as the Council of Europe Convention on Peaceful Settlements of Disputes.
284. It appears to be generally accepted that claims of extraterritorial jurisdiction are subsidiary to primary territoriality claims. Conflicts of extraterritorial jurisdiction should preferably also be settled by cooperative mutual consultation.
285. In the administration of criminal justice in a multi-sovereign environment, different cooperation techniques can be of relevance. Traditional techniques such as extradition or mutual assistance are generally applicable, provided that the basic requirements of double criminality and conditions for extradition are met. States must, therefore, operate with criminal laws that are as consistent as possible. Laws will be consistent only if there has been cooperation with international institutions such as the United Nations, the Council of Europe, the Organization of American States, the British Commonwealth of Nations, OECD and similar groups. The imposition of penalties sufficient to classify international computer crimes as serious offences is also required.
286. In the search and seizure of data, the mass storage of information in data banks and its transmission through carriers may necessitate additional safeguards, with regard to the criteria for limiting acceptable purpose of search and seizure and for determining relevance in the selection of the data.
287. Many key issues could be properly addressed by the more extensive use of, and consequent greater confidence in, a mechanism for transferring criminal proceedings. It would be advisable to develop conventional agreements that offer cooperative avoidance of conflict, mutual assistance and effective administration of justice.
288. Finally, and more specifically, the legality of direct access to computerized data stored abroad, for evidentiary purposes, should be examined to determine the appropriate balance between, on the one hand, preservation of evidence and efficient prosecution, and on the other hand, respect of exclusive sovereign territorial rights. The basis for a valid solution could be found by combining the notion of a right to immediate access to information for the purpose of freezing and conservation, with the requirement that clearance be given by the other State before the frozen data could be used as evidence. Few if any transborder problems in computer crimes will resist solution by appropriate, balanced legal rules. What is fundamental is the political willingness, in a spirit of international cooperation, to tackle a crime that has no frontiers.