In October 2023, the EEEI joined as a partner with the Court of Appeal of Venice, an institutional member, to take part in the Digital Rights project. At the beginning of March, the European Commission gave a favourable response to this project by granting co-financing.
Consortium
| Coordinator | CORTE DI APPELLO DI VENEZIA |
| Beneficiary | FONDAZIONE AGENFOR INTERNATIONAL-IMPRESA SOCIALE – AGENFOR |
| Beneficiary | UNIONE CAMERE PENALI ITALIANE |
| Beneficiary | EUROPEAN PUBLIC LAW ORGANIZATION – EPLO |
| Beneficiary | INSTITUT EUROPEEN DE L’EXPERTISE ET DE L’EXPERT – EEEI |
| Beneficiary | HOCHSCHULE FUR OFFENTLICHE VERWALTUNG – HFOV |
Project content
The project aims to bolster the practical application of the EU directives on procedural rights for suspects and accused persons involved in criminal proceedings in cases where the penal law is confronted with the use of new technologies. Digital Rights focuses on two main aspects of the procedural rights of suspects and accused individuals in criminal proceedings:
- Accusations for crimes covered by the Budapest Conv. (computer fraud, money laundering via crypto-currencies, phishing, ransomware, DDoS attacks, interference with data and systems, online recruitment and training in trafficking, crimes and offences linked to terrorism linked to child pornography, infringement of copyright and neighbouring rights, etc.);
- Accusation for other crimes where e-evidence and investigations based on digital forensics are at the centre of the prosecuting and trial actions.
Good examples are the difficulties in complying with the principles set out in Art. 2, paragraph 1, c, of DIRECTIVE (EU) 2016/1919, when the search is carried out in private digital cloud domiciles different from the physical domicile of the accused or suspected persons, often in the absence not only of the accused and his lawyer, but also without a court order, contrary to the common procedures defined for interceptions ; Another example is the difficulty of complying with the principle of legality in the acquisition of judicial data based on Trojan horse tools without assistance in the country of execution, therefore in the absence of judicial authorisation in the competent jurisdiction; or difficulties in complying with art. 3 of DIRECTIVE 2013/48/EU and DIRECTIVE 2012/13/EU regarding the right of access to a lawyer and to be informed in the event of the seizure of data stored in multi-tenant clouds or multi-server repositories.
Finally, accusations based on massive access to massive data in multi-tenant repositories, which is a very common procedure in recent court cases, also pose additional procedural problems with regard to the principle of proportionality, as set out in Article 5(4) of the Treaty on European Union, because, in addition to the potential breach of Directives 2023/48 and 2012/13, it recalls in a new light the highly controversial judicial issue of data retention, already stigmatised by the Court of the EU in Digital Rights Ireland del 2014 (C-293/12 e C-594/12), Tele2 e Watson (C 203/15 e C 698/15) and other judgments, but accepted in the temporary multinational case law concerning the defendant in Sky ECC or Cas Enchrochat.
In this context, the key objective of the project is to improve the practical implementation of EU directives concerning the procedural rights of suspects and accused persons in criminal proceedings in which electronic evidence plays a central role.
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