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Please use this identifier to cite or link to this item: http://hdl.handle.net/10277/688

Authors: Colombo, Eleonora
Title: La cooperazione di polizia e giudiziaria e la circolazione della prova digitale nello spazio giudiziario europeo: un bilanciamento critico tra libertà, sicurezza e giustizia.
Abstract: The modern society is the result of a technological progress, as a sign of goodness and richness. As Mark Mazower observes, it is necessary to consider the “dark side” of the development, in order to avoid the dangers. The new technologies bring with them a hidden potential of violence, stressed by the relevant role in human life. Sociologists and psychologists are afraid of the unbalanced relation between man and machine, in which the first one is the slave of the second one. In fact, many times the computer instruments become a way for the commission (or for a better and fast commission) of a crime. Everyone would be in condition to know and understand the risks of the progress, in order to avoid them. This form of perception of the negatives is facilitated by the ways of communication, that allow to know hypothesis of cybercrimes, considered as the crimes committed by or on the computer (or others technological supports). Remember, for example, the famous case ECHELON, or the case of the website Wikileaks, or the case of the serial killer, Matej Curko and so on. These are only a little part of many news regarding to computer technologies. The research is due to this social contemporary panorama, from which are developed the analysis on the transnational crimes, uses of new technologies and the problems of EU criminal justice and procedure. In this field take importance the police and judicial cooperation (as informative cooperation too) between Member States, especially in the fight against transnational crimes, the circulation of e-evidences and the protection of data and of fundamental rights too. The Lisbon Treaty traces the state of the project of the European space of freedom, security and justice. The development of the police and judicial cooperation is one of the elements useful for the realization of this objective. The European law of cooperation and the interpretation made by the European Court of Justice, provide new powers of the EU institutions and also the recognition of the fundamental rights, written in the Nice Charta and in the ECHR. An integration of the national judicial orders needs the introduction of communitarian laws. In cooperation material, from the Convention of 1959 to the Bruxelles Convention of 2000, many things are changed. Out of these conventional instruments, we can consider also others important elements of development, as the Decision of EAW and the Decision of EEW. Many communitarian bodies are involved in the cooperation and their powers are increased during the time, as Europol, Eurojust and Olaf. These organisms are really so important in the fight against transnational and cyber crimes, in particular because they have member of every State and a good sight on the general EU space. The use of new technologies has increased the number of digital evidence, collected and useful for a decision of a criminal proc eeding. In the european judicial space there is not a common definition of the concept of digital evidence, but every national order use this. In the USA were developed the first studies in this material, related to the computer forensics, a method of analysis of the e -evidence. There is not a list of best practices in computer forensics too, but every police organism that use this method has a internal regulation (not binding). This condition of no common rules and criteria generates many problems to the judicial authorities, called to use or not use for the decision an e-evidence. But the digital evidence, in a context of fight against serious transnational crimes, needs to circulate between the States involved, balancing the interest of security and justice and the right to privacy . In order to realize this objective, all the infrastructure for the collection and circulation of data must be secure and controlled by specialized staff. In the EU (but also in the member States) there are many databases, useful for the collection of electronic evidences and for the circulation of them, in the procedure of police and judicial cooperation. The most important are SIS II, EPOC III of Eurojust, TECS of Europol, the database of Olaf, ECRIS, VIS, EURODAC and VIS. Each of these archives has special rules for access, collection and circulation of data and, in general, operational rules applicable. In these field we have to consider the protection of fundamental rights and of the procedural rights too. In particular, the right of a fair trial, of translation and interpretation, of defence and of privacy. In a multilanguage EU space, it is more difficult for the police and judicial authorities to cooperate and understand eachother. The increasing of powers of communitarian bodies (Europol, Eurojust and Olaf) and the development con common rules and principles, can realize a better collaboration between member States, as underlined in the Lisbon Treaty. The Europen Union, as stressed in the project Europe 2020,intends to put money for growing up the progress, technical and economical. The innovation needs a clear common response, by a normative way too. In many situations is better the choice of mutual recognition, as already known in the European context, in many others is better to harmonize (as possible) the principles and the laws between member States. Regarding the development of the EU judicial space, especially in criminal law and procedure, the communitarian order focus on t he judicial, police and informative cooperation. This is stressed also in the Sthockolm Program and in the Action Plan, in which are provided reforms in these matters. So, all the European citizen can hope in a EU space of freedom, security and justice and also in a communitarian criminal justice, with guaranties of procedural and fundamental rights, as written in Nice Charta, in ECHR and in the national Constitutions.
Keywords: diritto processuale penale,m prova digitale, cooperazione di polizia, cooperazione giudiziaria, banche dati, diritti fondamentali.
Issue Date: 2012
Language: ita
Doctoral course: Storia e Dottrina delle Istituzioni
Academic cycle: 24
Publisher: Università degli Studi dell'Insubria
Citation: Colombo, E.La cooperazione di polizia e giudiziaria e la circolazione della prova digitale nello spazio giudiziario europeo: un bilanciamento critico tra libertà, sicurezza e giustizia. (Doctoral Thesis, Università degli Studi dell'Insubria, 2012).

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