Harmonisation of cybercrime law: Past solutions, present tensions, and future challenges

The fight against cybercrime requires a coherent, internationally coordinated response, based on a harmonised substantial framework and the existence of procedural and cooperation tools suited to the peculiarities of this crime. Over the past twenty years, several multilateral instruments have been adopted to stimulate a common regulation of cybercrime, and the diffusion of intra and extra moenia investigative procedures apt for dealing with electronic data. However, with the fourth industrial revolution, the cybercrime framework is in danger of crumbling. Old technologies are changing, and new technologies are emerging. Most of the resulting social implications are revolutionary. The existing cybercrime international framework struggles to cover this evolution, and numerous areas remain unregulated. States are often left with no guidelines, relying on autonomous decisions, which – applied in cyberspace – may have international consequences. It is a matter of concern that such solutions frequently imply an overextension of the State ius puniendi, in defiance of the basic human rights of the suspect or accused. This dissertation will address the problems that the cybercrime framework is currently facing, and the future challenges posed to it by the digital evolution. It will undertake an analysis of the main multilateral instruments on cybercrime and their domestic implementation, with the aim to discover whether these instruments have succeeded in creating a coherent response to cybercrime. It will highlight how obligations under that legislation currently interact both with the primary human rights of the suspect or accused and with the evolving technological panorama. It will reflect on the ability of the cybercrime legislation to cope with future legal and technological challenges. It will offer recommendations for improvement at the normative and interpretative level, devoting particular attention to a more beneficial relation between criminalisation and human rights protection. Three main areas will be evaluated: substantive law, procedural law, and international cooperation and jurisdiction. Due to its importance, the CoE Convention will be the normative pillar of this work. Particular consideration will also be devoted to the EU instruments on cyberattacks. Although it will not engage in a systematic comparative study, this work will analyse the most prominent European domestic systems, in order to highlight the legislative and judiciary solutions better suited to exemplify its normative assumptions. Where relevant or necessary to the analysis conducted, legal systems outside the European area will be considered, with particular attention given to the American experience.