The Presumption of Innocence in The Age of Digitalization [PDF]

Zitiervorschau

The presumption of innocence in the age of digitalization PhD. Student Constantin-Marius ARĂDAN

West University of Timișoara Doctoral School of Law Doctoral supervisor: Dr. Ioan VIDA E-mail: [email protected] ORCID: https://orcid.org/0000-0001-5976-9955

Abstract

In the context of the dynamic evolution of digitalization, the paradigm has changed in terms of cybersecurity challenges and threats. Respecting and promoting the values of fundamental freedoms and human rights is a priority objective in the processes of cybercrime and other crimes related to digital evidence. It has already created one of the most complex environments, bringing together cyber security specialists, police detectives, prosecutors and judges. The presumption of innocence is a fundamental right, of constitutional rank, regulated by the Romanian Constitution, at art. 23, alin. 11 and also, by the European Convention of Human Rights, at art. 6, together with the right to a fair trial. These rights represent the procedural guarantees and an obstacle against abusive criminal liability. Based on Romanian-United States Strategic Partnership–Cooperation in Cybersecurity, the know-how from U.S. Cybersecurity legal framework, including interpretation and enforcement the Computer Fraud and Abuse Act (CFAA), the Electronic Communications Privacy Act (ECPA), the Cybersecurity Capability Maturity Model (CMMC) and the National Institute of Standards and Technology (NIST), we target the Romanian law regulation in order to improve and harmonize the legal framework on Cybersecurity domain, to secure and protect the human rights, fundamental freedoms and the Rule of Law as a final output.

Keywords: Presumption of innocence, Cybersecurity, human rights, Cybercrime, procedural guarantees.

I strongly believe that all humans should have the right to life, liberty and security of person, the right to be equal before the law and be entitled without any discrimination to equal protection of the law, the right to be presumed innocent until proved guilty according to law, in a public trial, and all the other rights we are entitled to under the United Nations Universal Declaration of Human Rights. The phrase “human rights” has long aroused the interest of doctrine, because the extent of the legal effects of protecting and guaranteeing them depended on the reception of the terminology meaning. In a first interpretation, “man’s rights are to be understood by "the world of the individual, through the immediate frame of his life. If such rights are empty of meaning in these places, they have no value anywhere. Without concerted action by citizens to secure these rights within the immediate framework of their lives, we will in vain look for signs of progress in the universe in which they live.1 In another opinion, it is necessary to differentiate between human rights and fundamental rights and freedoms, the latter being those of any person who is in the area of sovereignty of a State, regardless of his relationship with that State 2. The latter also includes the ‘citizens’ rights’, which arise from the citizenship report.3 The conceptual path of the term “human rights” is dependent on the course of history and on documents of programmatic nature that have influenced and protected peoples, nations, minorities - people. Paul Negulescu considers that public liberties are classified as primordial or primary and secondary or complementary freedoms.4 International legal instruments defend, in their essence, some fundamental human rights and freedoms, which, unlike other rights, are inalienable, imprescriptible and inherent to the human being. Presumption is an ”intellectual operation by which the existence of one fact is admitted by proof of another fact”5. Furthermore, ”the presumption of law shall suppress the 1

See Eleonore Roosvelt, Les dimensions internationales des droits de l’homme, UNESCO, 1978, p. 375.

2

See Ion Deleanu, Constitutional Law and Political Institutions, General Theory, Bucharest Publishing House,

1991, p. 3 4

I'm on it. See Ioan Muraru, Gheorghe Iancu, Constitutional Rights, Freedoms and Duties, Romanian Institute for Human

Rights, Bucharest, 1992, p. 10. 5

G. Cornu, Droit civil, Introduction, Les personnes, Les biens, 7e éditions, Montchrestien, Paris, 1994, p. 79.

requirements of special proof, definitively or provisionally” 6. In this respect, the deletion of evidence is deemed to be definitive in the case of an absolute and provisional presumption in the case of rebuttable presumptions7. Thus, addressing presumptions from the point of view of judicial practices entails even the burden of proof. In other words, they ”contribute to the removal of difficulties in proving a specific fact by transferring the subject matter of proof to a related fact” 8. That is why it has been held in the doctrine that presumptions support the person who has the burden of proof in dispensing from it, of proving the event giving rise to rights, instead probing a fact neighboring and connected with the event giving rise to rights, making it easier for him to do so.9 A constitutional principle is the presumption of innocence, as it is one of the instruments by which the protection of fundamental human rights is ensured. The presumption of innocence was a democratic conquest of the French Revolution of 1789 and was enshrined for the first time in the Declaration of the Rights of Man and of the Citizen. The first legislative reforms of criminal law and criminal procedure adopted by the Constituent Assembly in 1791 constituted a social-political victory, followed by a long series of reforms, which will gradually establish respect for human rights 10. In the opinion of Professor Manzini, the French11 Revolution emphasised the principle of freedom of belief, subsequently enshrined in the Universal Declaration of Human Rights of 1948, Considering that ignoring and contempt of human rights led to acts of barbarism that revolted the conscience of mankind, and that the creation of a world in which human beings will enjoy freedom of speech and belief and be freed from fear and misery has been proclaimed as the highest aspiration of men. The Constitutional Council of France held from the interpretation of Article 9 of the Declaration of Human and Citizens’ Rights that “the legislator cannot establish a presumption of guilt in criminal matters.” The exception to the rule concerns only exceptional situations in which those presumptions concern the matter of contraventions, but only subject to the 6

I. Vida, I. C.Vida, Formal Legistics, University Course, Legal Universe, Bucharest, 2020, p. 61.

7

See A.M. Naschitz, Theory and Technique in the process of creating law, Academy Publishing House,

Bucharest, 1969, p. 279. 8

I.Vida, I.C. Vida, op.cit., p. 61.

9

See A. Ionașcu, Evidence in the Civil Trial, Scientific Publishing House, Bucharest, 1969, p. 292.

10

Traian Pop, Criminal Procedure Law, vol. I, introductory part, Bucharest, 2019, pp. 87-89.

11

See Ion Gh. Gorgăneanu, Presumption of innocence, Intact Publishing House, Bucharest, 1996, pp. 23-24.

condition that they are not irrebuttable, that the rights of the defence have been respected and that the facts are reasonably inferred from the likelihood of imputability’ 12. In the present case, the holder of the vehicle registration certificate is required to pay an amount equivalent to the amount of the fine imposed for traffic offences on account of a simple presumption, which is based on a reasonable probability of imputability of the facts alleged. The legislature allows the person concerned to rebut the presumption of fault by proof of force majeure or by producing any evidence capable of demonstrating that he is not the offender. Contrary opinions and criticism of the presumption of innocence arose with the establishment of schools of anthropological and positivist thought which advocated adopting, for “born” criminals, and “out of habit” the presumption of guilt, taking for reasons of “social defense” even ante-delintum13. In 1991, the “Charter of Paris for a New Europe” was proclaimed in France with the aim of assuming the obligation of the states to respect human rights. The Charter stated that "The protection and promotion of them is the first duty of the state. (….) Their full realisation and exercise is the basis of freedom, justice and peace”. On the American continent, we refer to Article 8(2) of the Inter-American Convention on Human Rights, which regulates, among legal guarantees, that “Everyone accused of a crime shall be presumed innocent until his or her guilt is legally established.” During the trial he has the right to a number of guarantees, which are considered to be minimal — the right not to be forced to confess against himself or to admit his guilt; testimony under any kind of coercion loses its validity, final and irrevocable character of the judgment.14 In the criminal law system of the United States, the burden of proof lies with the prosecutor. The significance of the adage “the burden of proof is based on what is asserted, not on that which is denied” has been taken up in the notoriety of the expression “presumption of innocence”, enshrined in the American legal system under the phrase “not guilty until proven to the contrary”.

12

French Constitutional Council, Decision No 99-411DC of 16 June 1999, published in the Official Journal of

19 June 1999, p. 9018. 13

Grigore Theodoru, Lucia Moldovan, Criminal Procedural Law, Ed. Didactic and Pedagogical, Bucharest,

1979, p. 37. 14

The Inter-American Convention on Human Rights was adopted in Costa Rica in San Jose on 22 November

1969 and entered into force on 18 July 1978 at the Inter-American Specialised Conference on Human Rights. The text of the Convention, as well as detailed information about the inter-American human rights protection system, can be obtained at www.cidh.oas.org, accessed on 9.3.2023 at 10:00 a.m.

If the presumption of innocence is accepted in the state legal system, then the burden of proof must be demonstrated by the criminal prosecution bodies before the courts or courts with jurors. In the American legal system, the presumption of innocence is characterised by the fact that the defendant is not obliged to declare anything about the alleged facts, only the State through the prosecutor must prove the facts committed with an adequate level of certainty, and the jury must not take into account any unfavourable presumptions for the defendant because he has been accused of committing a crime and is present before the court, represented by a lawyer. In American doctrine, it has been noted that “the criminal trial, including the presumption of innocence, does not only refer to guilt or presumption of innocence, to the innocence of the defendant, but also to the jurors and the communities they represent 15.” It has been noted that the standard of reasonable doubt has evolved in order for the presumption of innocence to prevail over issues before the courts.16 If the judge considers that the burden of proof has been fulfilled, according to the rules of law, then the jury will deliberate on the evidence presented and give a verdict, being convinced of the guilt or innocence of the accused. If the judge finds that there is insufficient evidence in accordance with the rules in force, the case must be dismissed, the defendant being acquitted and subsequently pronounced a verdict of innocence. Also, if, after the evidence has been presented, the jury cannot decide with certainty that the accused person has committed the offence, the public prosecutor must prove every element of the offence beyond reasonable doubt. Procedural safeguards and fundamental rights of data subjects and witnesses must also be respected in a non-discriminatory manner, both in the external and internal stages of investigations, in particular in the process of communicating information. That is why the provision of any information must respect the confidentiality of investigations, the legitimate rights of the data subjects.17 The aim is not to prejudice the indictment, preliminary rulings of a procedural nature, decisions to pre-trial detention or to affect the presumption of innocence. These procedures 15

Sherman J. Clark, The Juror, the Citizen and the Human Being: The Presumption of Innocence and the Burden

of Judgment, ‘Criminal Law and Philosophy’, No.8/2014, p. 421. 16

Ibid.

17

Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013

concerning investigations conducted by the European Anti-Fraud Office (OLAF) and repealing Regulation (EC) No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999, published in OJ L 248 of 18 September 2013.

are also valid for electronic evidence, i.e. data in digital format, which are used both for the investigation of crimes and for the prosecution of their perpetrators. The most common electronic evidence is e-mails, SMS or content from messaging applications, audiovisual content or information about a user’s online social account. It is about cybercrime, which leads authorities to increasingly use e-evidence. In the literature, warnings have emerged that instruments of a constitutional nature and enshrined in international human rights treaties are omitted or neglected in investigations aimed at combating cybercrime18. There is concern that the right to a fair trial or the presumption of innocence are no longer required to be respected when it comes to digital investigations, which are unequivocally contrary to the provisions of Article 6 of the European Convention on Human Rights. We can easily imagine scenarios in which the presumption of innocence is jeopardised in investigations where digital technology intervenes — improper and inconsistent use of technology, failure to adapt constitutional guarantees to electronic sampling procedures, lack of impact studies on the necessity or opportunity of electronic evidence in forensics, poor data processing, reversal of the burden of proof, etc. Situations jeopardising compliance with the presumption of innocence In the case-law it has been held that the right to benefit from the presumption of innocence and to claim that the prosecution has a ”sine qua non” obligation to prove the charges brought against him is not an absolute right, since presumptions may be legal or factual19. An example, in this respect, concerns either the punishment of a material act or an objective in itself, a situation which does not depend on the intention to commit a crime or fault20. These presumptions must, however, be used with measure to protect the rights of the

18

R. Stoykova, Digital Evidence: Unaddressed threats to fairness and the presumption of innocence, Computer

Law & Security Review, Volume 42, September 2021. 19

ECtHR, judgment in Falk v. Netherlands.

20

ECtHR, Salabiaku v. France judgment, recital 27, on a presumption of criminal liability for trafficking and

possession of narcotic drugs, Janosevic v. Sweden, recital 100, on the imposition of tax increases for objective reasons and their application before a court ruling.

defence21. The means used must also be reasonably proportionate to the legitimate aim pursued22. The case-law of the European Court of Human Rights has held that ”the presumption of innocence is violated if the burden of proof is transferred from the prosecution to the defence”23. Thus, ”the accusation is required to provide sufficient evidence to substantiate a possible declaration of guilt”24. In all cases, the suspicion that a person has committed the act must have a thorough substrate in order to maintain the measure of detention and not to breach the presumption of innocence. Conversely, the person deprived of his liberty cannot be required to demonstrate the existence of reasons for his release25. A particular problem concerns the relationship between the presumption of innocence, the individual’s right not to incriminate himself and the digital investigation. In the field of joint investigations, persons suspected of having committed a cybercrime must not be compelled in any way to provide evidence, data or information that could self-incriminate him. In the framework of investigations of a digital nature, there may be the danger of collecting extensive personal information that affects the right to remain silent and which ignores the protection mechanisms provided for in the criminal proceedings in the preparation of the indictment. In such a scenario, the presumption of innocence is de factoviolated because the suspect is put in a position to prove his innocence, and the burden of proof is reversed. We note that these examples can be found both during the early investigation and when the judge orders the legality of the evidence obtained. In all cases, the burden of proof must rest with the prosecution so that any unfounded suspicion can act in favour of the accused person. There are no guarantees of transparency and accuracy of the collection of e-evidence, since in the initial phase of the investigation electronic evidence can be processed, altered or even lost if a large amount of data is worked out. That is why we believe that there should be a special legal procedure that gives a status to 21

ECHR, Salabiaku v. France, paragraph 28; Radio France and Others v. France, recital 24, concerning the

presumption of criminal liability of the director of a publication for defamatory allegations made in the context of radio programmes; Klouvi v. France, recital 41, concerning the impossibility of defending against a slanderous denunciation. 22

ECHR, Janosevic v. Sweden, paragraph 101.

23

ECHR, Telfner v. Austria judgment, para. 15.

24 25

ECHR, Barberr judgment, Messegué et Jabardo v. Spain, para. 77. ECHR, judgment in the Bykov case against Russia.

the materials collected in an investigation, which could subsequently become evidence, given that it is not examined by the court, but on which the change of status from suspect to defendant may depend. In doctrine, but also in practice, it was assessed that computer surveillance “makes it possible to capture data that is not even intended to be transmitted (and could not be intercepted) and which has not yet been stored (volatile data such as passwords and encryption keys) (and could not be confiscated) 26”. This type of investigation interferes with privacy rights, data protection and telecommunications secrecy, disrupts the integrity and confidentiality of information systems. This information may go beyond a judicial interception warrant, which cannot estimate or intuit multiple dangers to the integrity of the investigation or the quality of evidence. In the same vein, the judge may not be aware of the risks of certain investigation technologies or methodologies or be informed of investigative methods, nor be able to assess the intrusive nature of the forensic technique. In either case, the presumption of innocence fades, and the suspect is deprived of the protection of the law and is put in a position to prove his innocence. Then, the use of encryption and emerging technologies (e.g. cloud) by criminals and third parties creates the need for broader skills, such as anti-pritition laws or laws allowing access to data. Obviously, there are discussions on the legality and constitutionality of such intrusive investigative measures. In our opinion, the solution to improve the romanian legal framework on Cybersecurity is to bring a great value like best practices and know-how from United States Cybersecurity U.S. Cybersecurity legal framework, including interpretation and enforcement the Computer Fraud and Abuse Act (CFAA), the Electronic Communications Privacy Act (ECPA), the Cybersecurity Capability Maturity Model (CMMC) and the National Institute of Standards and Technology (NIST), through proposals of ”lex ferenda” to the Romanian Parliament. The project is highly important for the field of Cybersecurity, which targets the Romanian laws and regulations, including legal interpretation and enforcement, educational exchange and research in the context of Romanian - United States Strategic Partnership.

Conclusions 26

A. Arnes, Digital Forensics: Academic Introduction, Hoboken, NJ, John Wiley & Sons Inc., 2018.

The presumption of innocence must be taken into account in supplementing and modifying criminal proceedings so as to protect personal data as well, and the data collected for the purpose of the investigation benefit from fair, objective and non-intrusive processing. I consider that the presumption of innocence should not be circumvented in any way. It does not seem natural to me that the investigation into digital crimes does not benefit from the same safeguards thresholds laid down by the ECHR and the fundamental laws of states. There must be reasonable suspicions to initiate the criminal investigation and to impose corrective measures so that the presumption of innocence is not undermined in order to achieve security objectives.”27 I agree with the view that any abdication from the presumption of innocence is likely to affect the criminal proceedings fully fairly.28 In conclusion, the needs of conducting a digital investigation and the difficulties inherent in the fight against cybercrime cannot justify restricting guarantee rights such as the right to a fair trial and respect for the presumption of innocence.

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No 5(2)/2009, pp. 66-103. 28

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1) Arnes, A. Criminalistică digitală: Introducere academică, Hoboken, NJ, John Wiley & Sons Inc., 2018 2) Batia, Giovanna, Alessandro Pizzo, La presunzione d'innocenza dell'imputato, Zanichelli, Bologna, 1984. 3) Beck, James M., La Constitution des Etats Unis, Paris, 1923. 4) Budișan, Călin, Prezumția de nevinovăție. Evoluția conceptului șivalențele sale actuale, în „Caiete de drept penal”, nr. 4/2017. 5) Cornu, Gerard. , Droit civil, Introduction, Les personnes, Les biens, 7e éditions, Montchrestien, Paris, 1994. 6) Ciopec, Flaviu, Respectarea prezumţiei de nevinovăţie în procesul penal. Analiza criteriilor jurisprudenţiale din practica C.E.D.O. împotriva României, Analele Universității de Vest din Timișoara - Seria Drept, Universul Juridic, Timișoara, 2013. 7) Clark, Sherman J., The Juror, the Citizen and the Human Being: The Presumption of Innocence and the Burden of Judgment, ”Criminal Law and Philosophy”, No.8/2014. 8) Deleanu, Ion, Drept constituțional și instituții politice, Teoria generală, Editura București, 1991. 9) Ionaşcu, Aurelian., Probele în procesul civil, Editura Ştiinţifică, Bucureşti, 1969. 10) Gorgăneanu, Ion Gheorghe, Prezumția de nevinovăție, Editura Intact, București, 1996. 11) Muraru, Ioan, Iancu, Gheorghe, Drepturile, Libertățile și Îndatoririle constituționale, Institutul Român pentru Drepturile Omului, București, 1992. 12) Naschitz, Anita , Teorie şi tehnică în procesul de creare a dreptului, Editura Academiei, Bucureşti, 1969. 13) Rials, Stephane, Declarația drepturilor omului și ale cetățeanului, Ed. Polirom, Iași, 2002. 14) Roosvelt, Eleonore, Les dimensions internationales des droits de l`homme, UNESCO, 1978. 15) Rusu, Ion, Drepturile omului reflectate în principalele instrumente juridice internaționale. Prezumția de nevinovăție și dreptul de a fi prezent în cadrul procedurilor penale în Uniunea Europeană. Unele opinii critice, în „Caiete de drept penal” nr. 2/2018. 16) Vida, Ioan., Vida, Ioana., Cristina. ,Legistică Formală, Curs universitar, Universul Juridic, București, 2020.

17) Stoykova, Radina. , Digital evidence: Unaddressed threats to fairness and the presumption of innocence, Computer Law & Security Review, Volume 42, September 2021. 18) Traian Pop, Drept procesual penal, vol. I, partea introductivă, București, 2019. 19) Theodoru, Grigore Moldovan, Lucia, Drept procesual penal, Ed. Didactică și Pedagogică, București, 1979. 20) Vervaele, JAE, Măsuri procedurale speciale și protecția drepturilor omului; raport general. Legea Utrecht Rev. Nr. 5(2)/2009.

Legislație: 21) Regulamentul (UE, Euratom) nr. 883/2013 al Parlamentului European și al Consiliului, din 11 septembrie 2013, privind investigațiile efectuate de Oficiul European de Luptă Antifraudă (OLAF) și de abrogare a Regulamentului (CE) nr. 1073/1999 al Parlamentului European și al Consiliului și a Regulamentului (Euratom) nr. 1074/1999 al Consiliului, publicat în JO L 248 din 18 septembrie 2013. 22) Convenția interamericană a drepturilor omului a fost adoptată în Costa Rica, la San Jose, la 22 noiembrie 1969 întrând în vigoare la 18 iulie 1978. 23) https://www.mae.ro/sites/default/files/file/anul_2021/2021_pdf/ 2011.09.13_joint_declaration.pdf, accesat la data de 10.03.2023, ora 13:00. 24) Consiliul Constituțional Francez, decizia nr. 99-411DC din 16 iunie 1999, publicată în Jurnalul Oficial din 19 iunie 1999. Jurisprudență CEDO:

1) Hotărârea CEDO, în Cauza Janosevic contra Suediei. 2) Hotărârea CEDO, în Cauza Telfner contra Austriei. 3) Hotărârea CEDO, în Cauza Barberr, Messegué et Jabardo contra Spaniei. 4) Hotărârea CEDO, în Cauza Bykov contra Rusiei. 5) Hotărârea CEDO, în Cauza Falk v. Ţările de Jos. 6) Hotărârea CEDO, în Cauza Salabiaku v. Franţa. 7) Hotărârea CEDO, Cauza Janosevic v. Suedia. 8) Hotărârea CEDO, Cauza Radio France şi alţii contra Franței. 9) Hotărârea CEDO, Cauza Klouvi contra Franței.