The Transnational Nature of the Digital Evidence between Requests for Cooperation and Sovereignty Claims

A Necessary Balance to Fight New Forms of Crime

Abstract

Technological evolution brings with it two negative consequences: the emergence of new computer crimes and the exponential increase of common crimes committed through the use of computer tools. The aim of this research was to understand how the issue of judicial cooperation in criminal matters could also benefit from the recent opening to the signing of the Second Additional Protocol to the Budapest Convention: if the States are not able to agree on the provision of procedural rules common for the purpose of ascertaining crimes of a supranational nature, according to a federal logic which should be pursued, if nothing else, at the European level, a fundamental defect of the current structure emerges. The entry into force of the law of 18 March 2008, n. 48 represented a fundamental step for the adaptation of the Italian criminal-procedural system to shared standards, just as significant is the circumstance that the Second Protocol was opened for signature under the Italian presidency of the Committee of Ministers of the Council of Europe . At first reading, the enrichment of the tools made available to the national judicial authorities is evident - just think of the new provisions on videoconferencing and joint investigative teams, pursuant to articles 11 and 12 – which aims to fix the regulatory framework in the absence of other specific provisions among the authorities called to operate. The real challenge will be to understand whether the Cybercrime Convention, due to the timeliness and foresight with which it was drafted – fully embracing the needs of substantial criminal protection, innovation and harmonization of procedural discipline and investigative tools, as well as cooperation international level – will effectively represent an efficient bulwark against the most modern forms of crime, to be countered at a supranational level, precisely in the light of the Second Additional Protocol.