prof. dr. jur. m. kaiafa-gbandi member of the ecpi · 2011. 10. 10. · prof. dr. jur. m....

Criminalizing attacks against information systems in the EU

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Aristotle University of ThessalonikiFaculty of Law

Department of Criminal Law and Criminology

Prof. Dr. jur. M. Kaiafa-Gbandi

Member of the ECPI

Prof. Dr. jur. M. Kaiafa-GbandiMember of the ECPI

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

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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

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Proscribed types of conductB. 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 CybercrimeConvention) (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 CybercrimeConvention) (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

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Criminal SanctionsDemonstrable 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 systemsDrawing a conclusion: The actual reasons behind the choices made: the will to fight organized crime and terrorism. However this could be achieved through special provisionsdesigned 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 certarequirement 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





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 circumstancesAmending the provision on jurisdiction andNarrowing down, if not abolishing the provision on preparatory acts.




Addressing these corrections

is a very important task of the European Parliamentbecause

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



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prof. dr. jur. m. kaiafa-gbandi member of the ecpi · 2011. 10. 10. · prof. dr. jur. m....

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