Criminalizing attacks against information systems in the EU web.auth.gr/poiniko
Introduction Focus of the presentation on COM (2010) 517 final Core question: the underlying foundation of the choices made in the context of fundamental principles of European criminal law Evaluation under the perspective of the ECPI-Manifesto on European Criminal Policy
Initial approach of COM (2010) 517 final The proposed directive: requires MS to proscribe two additional types of conduct (illegal interception of computer data and the production, sale etc of tools used for committing computer offenses) introduces changes pertaining to incitement, aiding and abetting, attempt and especially applicable penalties, including aggravating circumstances web.auth.gr/poiniko
Proscribed types of conduct A. Conduct already provided for in the framework decision of 2005 The proposed directive: Expands the ambit of illegal access to information systems contrary to the principle of ultima ratio Introduces no changes for the provisions concerning illegal system interference and illegal data interference web.auth.gr/poiniko
Proscribed types of conduct B. Novel provisions The proposed directive: requires MS to criminalize illegal interception of non-public transmissions of data by technical means with no limitations (in contrast to the Cybercrime Convention) (see though the Council s outcome of the proceedings) requires MS to criminalize the production, sale etc. of any device designed or adapted primarily for the purpose of committing any of the offences referred to in art. 3-6 (preparatory acts) with no limitations (in contrast to the Cybercrime Convention) (see though alterations in the Council s outcome of the proceedings) requires MS to criminalize attempt by all offences excluding only preparatory acts (see though differently the Council s outcome of the proceedings) requires as necessary element of all offences without right, defines it though in art. 2(d) broadly web.auth.gr/poiniko
Criminal Sanctions Demonstrable differences compared to the existing FD leading to an overall strengthening of criminal repression: penalties of a maximum term of at least two years, even for the preparatory acts inflexible sentences (in contrast to the existing FD, risking coherence of national legal systems and undermining the principle of proportionality) expansion of aggravating circumstances and stricter sentences in case of the commission of any offence that entails them, including preparatory acts Reactions and response to the criminal sanctions: the outcome of the Council s proceedings: exemption of the preparatory acts from the minimum imprisonment term required restructuring of the aggravating circumstances and their confinement to the offences of illegal system and data interference
Assessing the EU Policy on criminalizing attacks against information systems Drawing a conclusion: The actual reasons behind the choices made: the will to fight organized crime and terrorism. However this could be achieved through special provisions designed to address these acts The proposed directive neither respects fundamental rights of the Charter nor observes European Union law principles: provisions not conform to the lex certa requirement which is also applicable on a European level and undermining the proportionality principle There is a valid concern about broadly criminalizing preparatory acts by proscribing tools that are not by their very nature designed for the sole purpose of attacking information systems and by not leaving room for limitations This is why it becomes imperative to support and complement the outcome of the Council s proceedings in terms of preserving the ultima ratio principle as well as the principles of legality, proportionality and respect for the coherence of national legal orders Prof. Dr. jur. M. Kaiafa-Gbandi
Necessary corrections (specific recommendations for the amendment of the proposed directive see in the ANNEX of this presentation) Defining termini like: illegal interception, technical means, minor cases Amending provisions on penalties and aggravating circumstances Amending the provision on jurisdiction and Narrowing down, if not abolishing the provision on preparatory acts.
Addressing these corrections is a very important task of the European Parliament because only in this way fundamental principles of criminal law are served and the EU may achieve its declared goal, i.e. place the individual at the heart of its activities