RICERCA ITALIANA     

Research program

Criminal Law and Treaty establishing a Constitution for Europe

University Co-ordinator

Università degli Studi di VERONA - STUDI GIURIDICI - VERONA(VR)

Research Unit Leader

Lorenzo PICOTTI

Description

1. Objectives of the research – The first objective of the research is a systematic survey and an updating of current penal law on informatics in order to detect its structural characteristics from the point of view of the juridic interests and goods protected as well from the point of view of protection techniques, filing according to dogmatic criteria the various offences and typologies subject to sanctions connected to them (infra, sub 2).
The second step consists in seizing up the influence, on the normative production, of the over-national sources, starting with the laws of European Community and Union, and later on widening the frame to the larger contest of the other international seats, fron the European Council to the United Nations, taking into account also the possible interactions among them and with the national traditions (Infra, sub 3). It will hence be useful a comparative investigation of legal organisations belonging to different over-national "systems" (for example European Community on a side a
The last target is to detect the effects that the new attributions in the penal field, as stated by the institutive Treaty of the European Constitution, can originate, with a special attention to the sectors of the laws on informatics referring to previous competences of the Community (tutelage of persona data, copyright, electronic commerce etc.) or of the Union (in the matters of terrorism and organised criminality), overcoming the present limits of European law and the ambiguous situation arising from the dichotomy between First and Third Pillar (see the Scientific Starting Base).
2. Systematic classification – The analysis will have to be carried on with a methodic distinction between different groups of offences and illicit acts. The first concern the offences which can be related to traditional typologies already included in penal codes and laws; even if these offences are characterised by the descriptive autonomy of the acts subject to penalties if compared to pre-existent reference elements, they still maintain with them important connections as far as their structure, denomination or system placing are connected, according to a model that can be considered basically "parallel" with common offences (as computer frauds are if compared to common fraud, or computer forgeries if compared to documentary forgeries, or computer damages if compared to damages to "things"; to illicit interception of computer communications and data compared with interception of telegraph or telephone conversations or communications; to abusive access if compared to violation of domicile etc.)

The second important field in the matter is that of the copyright, in which in the 90s many novelties have been registered, most of them as an application of directives of the Community and of international agreements or conventions, with the aim of adequate and enlarge not only the extra-penal discipline, but also the sanctioning discipline of the new product originated by the technological development, introducing new criminal offences, more severe penalties and administrative violations, thus determining a noticeable widening and hardening of the repressive response.

The third sector to be taken into account is the one concerning the treatment of personal data, which is a "microcosm" in its own, created as a result of the application of conventions and recommandations of the European Council and of Communitarian directives, starting with a fundamental one (95/46/CE, 24 October 1995), the 97/66/CE concerning the area of telecommunications, up to the 2002/58/CE and later ones, partially modifying and updating the previous ones. Such "microsystem" includes nowadays an articulated system of disposition of administrative and civil character, regulations, provisions of the authorities, deontological codes etc.,; compared with them, the penal fattispecie and some administrative illicit events aver a "merely sanctioning" function, in order to punish the most relevant violations of the discipline.
Finally, the last emerging area is that of the cybercrimes through the Internet. They coincide only partially with the ones above mentioned, from which they differ from a conceptual point of view both for the fact that they can enlarge themselves up to the point of including (other) offences or "common" modalità di commissione (cyber offenses in a broad sense of the word, as they can be committed also by traditional means) and for the fact that, on the contrary, they may present totally new characteristics which require specific formulazioni incriminatrici (the strictly speaking cyber crimes)
In the first of the two groups we consider, for example, the offenses of "communication" of illicit opinions or contents, as on-line defamations, the issuing of pedo-pornographic materials, instigation to racism, nazism or in general to the perpatration of offences etc., but also offences of a different nature, such as the organisation and the development of illicit trafics (drugs, weapons, young and human being, organs etc.), or criminal associations acting with intent to terrosristic attak, "mafia", etc.
The second and more limited group, on the contrary, includes forms of attack directed against cumputer sites (for example Denial of Service, NetStrike, etc.), the production or issuing of "devices" in order to create abusive accesses, captate or duplicate access codes or key words, to trespass protection or criptation systems, the issuing in the net of viruses or spams through non-licensed programs activate in alien systems, the illicit gain of dominions etc. Not all these behaviours deserve or are already the object of penalties, and anyway it will be necessary to examine the matter in the light of practical and technical analysis on the background phenomena and on the always new modus operandi, with the support of informatics experts (to whom individual contracts must be conferred).

With reference to the different groups of offences so individuated, the differences in structure, to be put in relation with the different legal interest protected with their incrimination, will later have to be pointed out.
In Italian penal code take shape, for example, criminal acts which are mostly "independent", concerning behaviour or events, defined through descriptive elements assimilated as far as possible to the traditional offences to which they are more similar. On the contrary, in the field of penal special law, mainly concerning the copyright and the treatment of personal data, but some other disciplines as well (taxations, estate market etc.) penal offences are "merely sanctioning " the extra-penal precepts by which they are regulated, and consist non only in crimes, but also in violations and often also in administrative illicit events, thus subject to be sanctioned both intentional and negligent.
As far as cyber crimes are concerned, they are considered in very general terms by the Cybercrime Convention of the European Council, and they are not yet (de jure condito) a category with an unitarian definition defined in its structure and its rules, apart the need of limiting in the clearest possible terms the field of penal relevance of offensive behaviourings confronted with the legitimate expression of fundamental liberties which must be granted also and above all in the Internet.

3. The influence of over-national sources and the techniques of formulation of offences – The analysis of the various "techniques of normative formulation" of typical offences allows to distinguish between the choices which originate from over-national prescriptions and directives and the ones more directly connected to the limits and traditions of national jurisprudence. Up to the present day only a limited minority of offences seem to have an autonomous formulation, while in most cases they derivate from or enlarge current previsions.
This result is achieved through "definitories concept" of new object to be protected, individuated at a over-national level, to which is extended the application of a series of incrimination already existing in the national law, and which do not change as far as systematic allocation and sanction treatment are concerned (the clearest example is that of forgery of data or computer documents, which Italian penal code inserts in the area of the forgery of documents, defining ex novo this concept in art. 491-bis, but then applying to them – when possible – traditional offences). In other cases "extensive dispositions" are applied, such as the ones in the matter of "mail", thus making the connected offences applicable also to e-mail". Or it is only the "moods of damaging" (modus operandi) that may vary, being applicable to a large range of offences which are not individuate before, as in the case of the concept of "violence" on computer programs or elaborations, that § 3 added to art. 392 of Italian penal code ranges, "to the effect of penal law", to the general concept of "violence upon things".
The formal creation of ad hoc criminal offences ad hoc often takes after the model of the current ones, as we clearly see in the above mentioned case of computer forgery (to which refers the new art. 640-ter of the Italian penal code, models itself after the common fraud, as it happens with § 263 a german StGB. The same can be said per the damage to computer data and programs, considered in art. 635-bis of the Italian penal code and in § 303 a german StGB, shaped after their respective models of things damage, with the result that the originally difformities among the different laws are maintained and reproduced.
In a few cases only the trend of national jurisprudence towards the "assimilation" (suggested or imposed by the over-national law) of the new computer offences to common offences already existing in national codes is not observed, as in the case of "abusive possess and issuing of access codes" and of "issuing of programs with the aim of damaging or interrupt a computer system" (artt. 615-quater and 615-quinquies of the Italian penal code, introduced in 1993), which appear as obstacle crimes in order to prevent, respectively, abusive excesses or damages and attempts against computer data and systems; owing to the absolute new characters of the behaviourings and the objects involved they can not find a correspondence in already existing concepts, also from the point of view of the protected interests.
Nevertheless, they find an interesting correspondence in the previsions of the Cybercrime Convention of the European Council (see art. 6) as well as in previous dispositions in foreign law (as the ones of the State of California and of federal law in the United States).
Totally new previsions take shape also in the matter of juvenile pornography, with peculiar attention to the so-called virtual and/or apparent one (art. 9 Cybercrime Convention), and for some means of violation of copyright in the Internet.
In this last area, the peculiarity of the characters of the offences is that, for the largest part, they concern behaviours licit in themselves and even customary for those who produce, distribute, execute and use protected works (acts such as "reproduction", "recording", "broadcasting", "acting", "diffusion", "issuing", "sale", "commerce", "circulation", "duplication" etc.); these acts, however, become illicit, and hence an offence, when there the right of acting or an authorisation on the part of the property is missing as required by extra-penal discipline, or when other rules established by the extra-penal discipline are violated, including the hypothesis of the use of "supports without authorisation" of the competent authority. At present, the new dispositions punish also any event preparatory and functional to the violation of the copyright, such as products or services aiming at bypassing protection technological devices. An outstanding form assume also the most recent ways of moods of exercise of exclusive rights, newly conceived so that they may include the present forms of "communication" and "public availability" which characterise services and accesses on demand offered by the Internet.

About the discipline of privacy and of the treatment of personal data will be taken into account the most complicated side, arising from the fact that the choices of protection and the balancing of interests operated by the European Community in order to guarantee a high standard of protection seem difficult to put into practice in the Internet and in the "globalised" situation of trans-national relationships; together with technical difficulties as far as the real respect of legislative principles are concerned, it is evident a need for a non-border "circulation" of personal data, indispensable in the various fields of economic and social activities inside systems which have different and generally less effective protection standards.

4. Tasks of the operative unit and results of the research – In accordance with such objectives, which have a peculiar articulation defined in concept, the phases of the researches may follow a partially independent schedule. The detection, collection, selection and filing of the normative, jurisprudence and doctrinal sources, both Italian and foreigner, will at the same time concern also those of European and international law. For such objective stages abroad, at foreign universities and research institutes with which the coordinator of the research team has already been personally in touch (such as the Max Planck Institut für ausländisches und internationales Strafrecht of Freiburg/Germany, the Wiarda Insitut of the Utrecht/Neederland University, the Boalt Hall of the University of California in Berkeley/USA) must be planned for the members of the team,
The elaboration and comparative analysis of the various disciplines and results will always have to be put into relation with the practical side and the practical and new forms of manifestation of crime phenomena and behaviourings to be contrasted, in a continuous evolution and changement; hence the need for the cooperation of a technical staff of experts in the field of informatics and of security.
The third and final part of the research, concerning the relationship of penal computer law with the new European Constitution, will have an obvious starting point in the analysis of current or in preparation Communitarian and European Union law in order to evaluate the possible influence of the new juridic competences in the penal field and more in general the new assessment of the constitutional framwork, starting from the fundamental principles and rights included in the first two parts of the Treaty, taking also into account the connection with the different fields of European "policy" in the matter, up to the more specific objective of the "area of freedom, security and justice" with its normative instruments.

The results of the researches will be illustrated and discussed in a congress organised at the end of the working period, involving foreign experts and scholars, as well as representatives of European and international institutions; the acts of the congress will be published.