Application of Procedural Criminal Rules to Cybercrime: Challenges and Prospects
Dr. Mohamad Habhab
Associate Criminal Law Professor – Faculty of Law – the Lebanese University and the University of Jazeera – Dubai
Information technology has revolutionized intellectual information, serving now as the mainstay of people’s transactions in the various fields of financial, social and cultural life, and the cornerstone of the transition to smart governments and the building of a modern, advanced and powerful state. However, this development, which invaded the whole world, has created a dark dimension, which casts its shadow on both economic and security aspects.
On the one hand, the world’s cybercrime losses in 2016 were estimated at $ 650 billion, and the amount is likely to rise to more than $ 1 trillion by 2020.
According to recent reports issued in 2017, the Gulf region is not immune to the threat of cybercrime. The Gulf economy has suffered losses of $ 850 million due to software piracy, which is a real threat to both government and business communities.
On the other hand, there is no doubt that the Internet and its subsidiary services have created a large space for freedom of expression and circulation of information, but at the same time it has been used as a fertile environment and an effective means for organized gangs and terrorist groups to target the security of individuals and the interests and security of states. (Such as the dissemination of extremist ideas, money-laundering and the financing of terrorism …)
Punishment for the above-mentioned crimes is not a major legal problem, since most States have adopted in their legislation legal provisions that target such acts and determine appropriate punishment.
However, the real problem lies in the difficulty of proving the elements of these crimes and prosecuting the perpetrators until they are brought to justice. This is due to the following: either to the intangible nature of the Internet or to its international nature.
The non-physical nature of the network and the applications it gives users as IP Spoofing or Steganography, or Pharming have allowed criminals to hide and hindered their tracking. The enormous techniques available, such as the MONDEX technique, made terrorist financing and money laundering operations easy and without leaving any trace or evidence to prove the elements of the offense.
In the light of the above, the difficulty of applying the current rules of procedure that are not appropriate to the new nature of cybercrime is problematic, thus preventing access to criminals and evidence that helps to uncover the elements of these crimes.
The international nature of this network raises complex legal issues, such as jurisdiction. With the spread of crime among all the countries connected to the network, each of these states has the right to claim jurisdiction in its favor. This leads to what the great French jurist Michelle vivant called “Fragmentation of Jurisdictions”. On the other hand, the issue of international cooperation in the field of judicial adjudication and the implementation of foreign judgments is raised. This cooperation is often not possible, either because of a conflict of laws or the absence of international conventions allowing such cooperation.
Therefore, the importance of this research is to identify the legal gaps that hinder the application of the rules of criminal procedure in the UAE, Lebanon and Kuwait, by explaining its provisions and their relation to the current reality, especially since to our knowledge there is no Arab legislation that contains procedural criminal rules for cybercrime.
Therefore, we will attempt to use the analytical scientific method to produce some conclusions and recommendations that can establish legal rules that can deal with this type of crime, while guiding the French and American experiences in this context because they have a long standing at all levels of legislative, security and judicial.
those that adopt declaration by e-mail or other similar means of modern technology. This is in addition to searching for the legal basis in the trends of the comparative judiciary. The study also examines the extent to which social media are considered as basic, alternative or precautionary means of judicial declaration. The study also examines the strengths, opportunities, weaknesses or legal technical challenges in the use of social media, as compared to others, in regards to judicial declaration.
Judicial declaration, judicial declaration through social media, electronic declaration, electronic judiciary.