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CYBER

LAW

UYL2612 - CYBERLAW

Based on the report by Council of Europe entitled “Cybercrime Training for Judges and Prosecutors: A Concept”, explain the importance of judges and prosecutors in equipping themselves with basic understanding of cybercrime and electronic evidence, especially in dealing with jurisdiction and territorial issues.

1

LESSON PROFILE

Introduction

Given the reliance of societies worldwide on information and communication technologies, judges and prosecutors must be prepared to deal with cybercrime and electronic evidence. While in many countries, law enforcement authorities have been able to strengthen their capacities to investigate cybercrime and secure electronic evidence, this seems to have been less the case for judges and prosecutors. Experience suggests that in most cases, judges and prosecutors encounter difficulties in coping with the new realities of the cyber world. Particular efforts are therefore required to enable judges and prosecutors to prosecute and adjudicate cybercrime and make use of electronic evidence through training, networking and specialisation.

Current initial and in-service training generally does not provide judges and prosecutors with the level of knowledge required to deal with cybercrime and electronic evidence. The present concept - “Cybercrime training for judges and prosecutors: a concept” by Council of Europe is to support such efforts. It has been developed by the Council of Europe’s Project on Cybercrime and the Lisbon Network of judicial training institutions in cooperation with a multi-stakeholder working group in the course of 2009.

Introduction

OBJECTIVES

• To enable training institutes to deliver initial and in-service cybercrime training based on international standards

• To equip the largest possible number of future and practicing judges and prosecutors with basic knowledge on cybercrime and electronic evidence

• To provide advanced training to a critical number of judges and prosecutors

• To support the continued specialisation and technical training of judges and prosecutors

• To contribute to enhanced knowledge through networking among judges and prosecutors

• To facilitate access to different training initiatives and networks.

2

OBJECTIVES

Elements of a judicial strategy

Elements of a judicial strategy

Institutionalising initial training & in-service training

Access to training/self-training materials

Offer at least one basic level module on cybercrime and

electronic evidence

Standardised and replicable courses/modules

Replicated at a broad scale

in a cost-effective manner

Available to training institutions in a cost effective manner / available online for judges and prosecutors

Public private cooperation

Pilot centres for basic and advanced training

Enhancing knowledge through networking

Coordinate their work with each other with the support of the Council of Europe.

Provide a foundation, peer-to peer interaction, networking among judges and prosecutors, networking with a range of other stakeholders

Contributes expertise and other support to

law enforcement training initiatives

Basic Knowledge

• Computers and networks: how do they work, basic notions of the functioning of the internet, role of service providers, particular challenges to judges and prosecutors

• Cybercrime: how information and communication technologies are used to commit crime

• Cybercrime legislation: domestic legislation (including case law) and international standards

• Jurisdiction and territorial competencies

• Electronic evidence: technical procedures and legal considerations.

3

Specialist Knowledge

  • Some judges and prosecutors may acquire specialist knowledge through post-graduate studies, self-training, networking or professional experience.
  • Such knowledge would not be part of regular training programmes.
  • Judges and prosecutors with such specialist knowledge are a valuable resource for others and as trainers.

SKILLS & KNOWLEDGE

Advanced knowledge

Advanced Knowledge

Computers and networks

Cybercrime

• Glossary of computer and cybercrime terms

• Functioning of the internet

• Protocols and technology

• Role of service providers

• Trends in cybercrime

• Typologies: Particular types and techniques of cybercrime (eg phishing, botnets and other malware, child pornography)

• Practical examples and simulations

Cybercrime legislation

Investigation and electronic evidence

• Domestic legislation and case law

• International cooperation: international and bilateral agreements, judicial cooperation channels and practical means for expedited cooperation

• Jurisdiction and territorial competencies

• Procedural law provisions and their practical application

• Steps to search, seize and preserve electronic evidence

• Features of forensic software

• Identifying suspects

• Following criminal money

• Safeguards and conditions

• Presenting electronic evidence in court

Current training on cybercrime and electronic evidence

4

CURRENT TRAINING

Comparative Study

Initial Training

In-Service Training

• In the Netherlands, although in-service training is optional, every judge is obliged to spend a specific number of educational hours per year. Each judge can decide which course(s) to follow. SSR, post-graduate education facilities and several institutions offer in-service training on cybercrime and electronic evidence covering both basic and advanced levels. The SSR offers every year three basic and three in-depth courses and one masterclass. Trainers are cybercrime specialists from the national prosecution service as well as experts from private companies and industry. However, the SSR also offers a wide range of other training courses and covering both legal and practical aspects (totalling around 400 courses). Thus, cybercrime training must compete with all these courses.

• In the Netherlands, initial training contains a basic one-day course on cybercrime which is taught by the Education Institution for Prosecutor and Judges (SSR) in Utrecht or Zutphen and includes a reader and other background information. The course involves interactive seminars and case studies. In addition to this basic one-day course and in-depth four-day training, a two-day masterclass is offered.

Initial Training

In-Service Training

• In “the former Yugoslav Republic of Macedonia” no in-service training is offered.

• In “the former Yugoslav Republic of Macedonia”, the Training Academy for Judges and Prosecutors provides initial training on cybercrime and electronic evidence as part of the training on criminal law, IT and searches. Ten hours are foreseen for cybercrime and electronic evidence.

Initial Training

In-Service Training

• In Portugal, the in-service training on cybercrime is provided by the Center for Judiciary Studies that organizes around 30 events per year. Two of them are regularly on basic cybercrime matters. Sometimes there are other seminars on related matters, such as copyright online or technology and the courts. The trainers are judges and prosecutors, lawyers, police officers and experts from public and private sectors. The seminars are well received having a large number of participants (mostly prosecutors, but also lawyers and judges from criminal courts).

• In Portugal, cybercrime is not a specific and autonomous subject part of the curricula. However, within the area of criminal investigation there is a specific seminar (one and half hour of training time) on cybercrime and digital evidence. During the training on criminal law and criminal procedural law, 9 hours are dedicated to computer crimes and procedural measures for obtaining digital evidence and 9 hours to ICT.

Initial Training

“Initial training” means the training that candidates:

  • after having completed university level law studies
  • receive in order to become judges and/or prosecutors. In many systems, the initial training is provided by a judicial training institution over a one to three years period;
  • in some others such initial training consists of more or less formalized practical training on the job without a specific curriculum.

Information available suggests:

  • Given the goal of providing all judges and prosecutors with a basic level of knowledge of cybercrime and electronic evidence, the training on offer is far too limited.
  • With very few exceptions, initial training covers basic levels only and advanced training is not foreseen.
  • Standardized training materials for replicable training are usually not available.

Initial Training

In-Service Training

In-service training, that is, continued professional training of serving judges and prosecutors, is offered either by public judicial training institutions but may also be provided by a range of other organizations.

Information available suggests the following:

  • Most in-service training on offer covers basic levels.
  • Only very few courses are offered, reaching only a very small number of judges and prosecutors.
  • In most cases, the basic courses appear not to be standardized. They thus do not seem to be replicable and do not allow a judge or prosecutor to progress from basic to advanced levels in a systematic manner. The Netherlands seems to be an exception in this.
  • Training materials appear to be scattered and prepared ad-hoc.
  • With few exceptions, training offering knowledge at advanced levels for judges and prosecutors is not available.
  • Given the international nature of cybercrime, a minimum level of coordination and consistency among countries would be necessary.

In-Service Training

IMPLEMENTATION

5

IMPLEMENTATION

Approach supported by the Council of Europe in South-eastern Europe – Cyber Crime@IPA

Approach supported by the Council of Europe in South-eastern Europe – Cyber Crime@IPA

1. Develop modules for basic and advanced training on cybercrime and electronic evidence

2. Train trainers

3. Deliver pilot training

4. Institutionalize: integrate such training in the regular curriculum of judicial training institutions

5. Establish center for judicial training to network and update materials

Approach supported by public and private sector institutions and partners, including international organizations

Approach supported by public and private sector institutions and partners, including international organisations

  • The Council of Europe and the European Judicial Training Network (EJTN) as well as other bodies should promote the implementation of the concept throughout Europe and beyond.
  • The EJTN and the Council of Europe could organized a joint conference on this concept in the near future. The Council of Europe and the EJTN should regularly assess the progress made.
  • The implementation of this concept in practice should also be supported by donors.
  • Interested donors and organizations could partner up to develop projects to assist training institutions and other stakeholders that are prepared to assume responsibility for the measures proposed in this concept.
  • In order to reduce the risk of conflicts of interest or compromising the impartiality of judges and prosecutors, donors – rather than offering direct support – could provide resources to neutral third parties such as international organizations who would then interact with training institutions.

6

LISBON NETWORK

Lisbon Network: Links to judicial training institutions

Forty-four of the forty-seven member States of the Council of Europe are represented within the Lisbon Network. The Lisbon Network's members are relevant national institutions in charge of the initial and continuous training of judges and prosecutors. They can also be, depending on the cases, Schools of Magistrature, Centres for Legal training or magistrates' training units within the Ministries for Justice.

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