“Digital Evidences: between the Investigation Requirements and Human Rights”

Date:- 4/13/2019

Place:- RAMALLA

  Under the high patronage of His Excellency, Mahmoud Abbas, President of the State of Palestine, the Public Prosecution Office, in cooperation with the Turkish Public Prosecution, has held its ninth annual conference between 11 and 13 April 2019 under the title "Digital Evidences: Between Investigations Requirements and Human Rights", with the participation and attendance of 45 international delegations from 22 countries.

          On the sidelines of the opening session, the Attorney General, Mr. Akram Al-Khatib signed two memorandums of understanding between the Palestinian Public Prosecution and the Public Prosecution of Buenos Aires of the Argentine Republic, represented by Attorney General Luis Seivaco, and a memorandum of understanding with the Attorney General of the Republic of Botswana, Stephen Yasey Teruyakuzi.

First Day – Second Session: dealing with the digital evidence (international experiences)

           In this session, the international prosecutors and experts presented the national legal framework associated with cybercrime in several countries in addition to the technical practices followed by the competent parties to combat this type of crimes. Furthermore, specific international experiences of combating cybercrimes were presented taking into consideration the relevant international conventions, and the mechanism of dealing with the digital evidence and submitting the same to the court to be considered in accordance with the legal provisions of each participating country in this session.

           The first session was facilitated by the Chief Prosecutor and Head of International Relations Department, Turkish Public Prosecution, Dr Ilknur Altuntas. The session included five international experiences initiated by the First Deputy Prosecutor General of the Public Prosecution of Azerbaijan, Mr Rustam Usubov who presented a national experience, followed by the Office of the Prosecutor of the Supreme Court of Cassation and Justice in Romania, Prosecutor Ms Monica Pop, then the Prosecution Expert/Former Chief Prosecutor of the Public Prosecution of the State of Finland, Mr. Jari-Pekka Paajala, followed by the Supreme Court of Appeal in Turkey, Senior Prosecutor Mr. Ahmet Gul. The session was closed by the Cybercrimes Chief Prosecutor of the Palestinian Public Prosecution, Ms Nesreen Zeina.

         The participants anonymously agreed on the importance of electronic evidence, the only proof of cybercrimes, as well as on the importance of taking the applicable legal procedures according to the law to ensure the validity of the evidence in accordance with the international human rights conventions. The participants also emphasized the need to deal with the electronic evidence by technical specialists in the investigation and evidence collection stages, and the need for an investigator and judge specialized in such cases due to the close link between the development of information technology and the development of crime, which requires international cooperation and ongoing training to raise the efficiency of those in charge of prosecuting these crimes.

Second Day – First Session: "Compatibility of Procedures of the Collection and Use of Digital Evidences in accordance with Human Rights Standards"

          This session discussed the technical procedures followed in the collection of digital evidence and the fact-finding process by the competent agencies to combat cybercrime in several countries around the world and their compatibility with the international standards of human rights. During the past ten years, a technological and technical revolution has affected all aspects of life, including the direct impact on the form of crime and the development of cybercrime, which is reflected in the need to adopt criminal law to fight against sophisticated cybercrime.

           The session was facilitated by the chief prosecutor and head of the human rights unit in the Public Prosecution, Mrs Najwa Abdullah. It included five experiences and it was initiated by Senior Public Prosecutor, of the Prosecutor General Office of the Supreme Court of Appeal in Turkey, Mr Necati Nursal, followed by Advocate General of the General Prosecutor Office at The Court of Appeal of Paris- France, Mr Gilles Charbonnier, then the Cybercrimes Expert of the Global Prosecutors E-Crime Network (GPEN) – Scotland, Mr. Andrew Richardson, followed by the Expert in Cybercrimes of the Republic of North Macedonia, Prosecutor Mr. Vladimir Milosheski. The session was concluded by a paper on the experience of the State of Palestine presented by Dr Ahmad Abu Jafar, the Law Professor of Al-Istiqlal University.

        The participants emphasized the need to prevent the perpetrator from using human rights principles and freedoms as a pretext for committing a crime that violates the rights of others by infringing their freedoms and privacy. They also stressed that there must be legal restrictions and controls to be taken by law enforcement officers and investigation authorities to reduce assaults against human rights.

        The sessions also discussed the close association between human rights, the research stage, and electronic investigations. The participants also discussed the EU conventions on human rights and indicated that the investigation and evidence collection must comply with the applicable principle of proportionality and the provisions of the law, for the interest of national security, and the protection of human rights, reputation of others, public morals and the sovereignty of the State.

         The participants presented the national challenges of a number of countries in this context, in particular the difficulties faced by the judicial authority in obtaining the electronic evidence, with reference to case law in this area, taking into consideration that the accused is entitled to a fair trial in conjunction with his or her innocence, based on the correct and legal data presented to the court as well as the legal proceedings.

        The participants also addressed the need of specialized international conferences on cybercrime to cope with the evolution of the crime and criminal behaviour that precedes the investigation authorities in this field, as well as the harmonization of procedures and international human rights standards.

Second Day – Second Session: collecting and presenting the digital evidence to the court (difficulties and challenges)

       HE, the the Attorney General, Mohammed Saeed Shreideh, opened the second session, stressing the depth of the relationship between both countries. He expressed his pride in the achievements of the Palestinian Public Prosecution in the legislative and procedural frameworks and in creating a strong judicial system despite the challenges. The Palestinian Public Prosecution, the Judiciary in Palestine and the law enforcement agencies are keen to ensure respect for human rights in all their actions.

        The session was facilitated by the International Judicial Cooperation Chief Prosecutor, Mr Jameel Sajdiya. It included presenting the best international practices of gathering the digital evidence and presenting the same to the court as the protection of persons during the collection and use and storage of personal data is a fundamental right in accordance with international human rights conventions. The session was initiated by the Public Prosecution in the Hashemite Kingdom of Jordan, Judge Ahmad Al-Afif /Chief Prosecutor of Amman / Head of Amman Prosecutor's Office who presented the experience of the Jordanian Kingdom and then the Italian experience was presented by Prof. Paola Todini, E-Campus.

        Ankara Chief Public Prosecution Office, Mr Mahmut Kaan Yüksel, Public Prosecutor presented the Turkish experience affirming the adherence towards constraints and controls provided for under the law on the protection of human rights. He presented the mechanism of seizing any materials in the crime scene and stressed the importance of taking the necessary measures for the protection and preservation given the importance of this stage in the proper seizure of evidence in accordance with sound technical and legal procedures and how to take electronic samples from the crime scene and the problems faced by the judiciary and judicial officers at the inspection stage. He recommended having special legislation governing the encryption process by the judicial authorities.

Eng. Ibrahim Abu Bakr, Head of the Palestinian Computer Emergency Response Team presented the experience of the team, its goals and the scope of its work. He emphasized the need to create greater cooperation among the judicial authorities to handle this type of crimes in more expeditious techniques than the conventional manner not consistent with the evolution of cybercrime.

         The First Lieutenant / Eng. Sonia Hammad - Director of Digital Evidence Laboratory, Cybercrimes Unit, the Palestinian Police presented examples of electronic crimes committed in Palestine and the role of the Laboratory in detecting the electronic evidence and identifying the person who committed the offence through the means of information technology. In the same context, she discussed the challenges faced by the criminal laboratory legally, technically and logistically, and she emphasized the increasing number of seizures received by the laboratory in the last three years, which requires increasing the number and efficiency of specialized human resources to deal with them.

        The participants in this session agreed on the importance of data protection and the judicial environment, taking into account the respect for personal rights, by developing a list of electronic evidence linked to digital criminal procedures, including the mechanism of storing and protecting data and judicial information and creating a product that allows the judicial authorities to obtain electronic information in a short period, which will positively impact the protection of human rights.

Second Day- Third Session: The Sensitivity of Dealing with Digital Evidences in the Juvenile and Family Protection Cases.

       The influence of the virtual world on the real world has considered a global concern, as it impacts all the society's categories. Hence the importance of the sensitivity of dealing with digital Evidence in the juvenile and family protection cases have emerged; this is the main theme of the Third Session of the 9th conference of the Public Prosecution.

        The Third Session has been facilitated by the Public Prosecutor, Bayan Alqawasmi, while Human Rights Expert from the Kingdom of Netherlands, Mr. Jeff Hoppenbrouwers has started the session by emphasizing on the indivisibility of International Human Rights, and presenting the most significant rights related to Cybercrimes. These rights are the right of expression, the right of privacy, the right of confidentiality and personal data protection (mange & save data), the right of a fair trial based on the best interest of the child,  and the women's right of access of special treatment during the court's proceedings. He also has suggested several recommendations on how to deal with such categories, mainly the prompt response of the Cybercrime's victims, the instruction issuing of cybercrimes against women and children, the establishment of mutual focal point between relevant organizations and institutions.

        The Research Director for the Crime, Justice and Attitudes Team, Britain, Dr. Jeffrey de Marco, The Prosecutor General Office of the Russian Federation, Mr. Mnatsakan Sakisyan- First Deputy Chief of the General Department of International Legal Cooperation, Mr. kemal Veli Acar, Manager of International Cooperation Unit, Department of Cybercrime in the Turkish National Police, have presented their own national experience in this subject.  

            The experts, in the session, have introduced their national experiences in the legal framework governing the technical procedures of cybercrimes related to children and women, as well as their best practices, in line with relevant international conventions and laws.

       The Juvenile Chief Prosecutor in the State of Palestine, Mr Thaer Khalil has presented the Palestinian Juvenile Prosecution Office's experience on dealing with the digital evidence in the Juvenile Prosecution Office, as it is responsible for children protection, and noted to the usage of the digital evidence as a mean of children protection.

      He also has pointed out to the Palestinian legal framework governing the usage of the Digital evidence( the amended Basic Law, The Palestinian children law No.7 of 2007 and its amendment, the Juvenile Protection Law No. 4 of 2016, the Criminal Procedures Code  No 3 of 2001) in line with the relevant international conventions.

      Mr Khalil has asserted that according to article 4 of the Children Protection Convention which pays attention to arrange counselling service for children on their rights, if violated any, and to provide safe and guaranteed mechanisms trusted by the children. The CCTV system mechanisms have been presented during his presentation and it is one of the means which aims to facilitate proceedings. 

      On the other hand, The Family Protection Chief Prosecutor, Ms Daren Salhiya, has clarified the definition of the digital evidence and the sensitivity of cybercrime's victims, as it is a widespread and dangerous crime. She also has presented the practical challenges of dealing with digital evidence, and the extent of respecting the victim's privacy, whether on reaching info or to bring evidence before the court. This is due to the lack of clear policies; specific resection; specific controls of responsibilities, roles & services; the absence of complaints channels as a result of the abuse and use of the evidence by judicial officers. At the end of her presentation, Salhiya has asserted on the importance of coordination between the Family Protection Prosecution Office and Anti-Cybercrimes Prosecution Office to overcome the abovementioned challenges.

Third day-First session: The electronic evidence between the requirement of the Investigation and Human Rights.

      The Participants has introduced, in this session, the International experiences on combating the counterfeit electronic devices and preserving human rights. papers have addressed the importance of the electronic evidence and proofing by addressing the legal evidence, illegal evidence, counterfeit evidence that may be used, and the necessity of the existing of experience reports by Technicians to ensure their validation and to submit to the justice. The session has been facilitated by Assoc. Prof in Law School Altinbas University, Dr Hasan Sinar. 

      The session has continued by submitting a research paper on the Hashemite Jordanian Kingdom experience of combating the counterfeit electronic evidence and its legal and procedural frame, ensuring the Human Rights maintenance, which prepared by the Prosecutor in the Jordanian Public Prosecution, Judge Ibrahim Srayra.  Unfortunately, he could not visit Palestine because he was not granted a permit by the Israeli regime which does not miss any opportunity to practice racist and discriminatory actions. However, the Public Prosecution has printed the research Paper of Srayra and distrusted it to all the participants of the conference.   Srayra's research has dealt with the types of the counterfeit electronic evidence, how to deal with such evidence, the probative value in the criminal act, besides presenting the latest technologies leading to a scientific revolution in the criminal evidence sector.

     The Deputy Public Prosecutor of the Supreme court in the Islamic Republic of Mauritania, Counselor, Abd Allah Ankjly, has presented the Mauritanian law combating the cybercrimes and the mechanisms of dealing with the electronic evidence and its probative value before the courts. 

      Assoc. Prof. Dr. Murat Volkan DULGER in the faculty of law, Istanbul Aydin University, Turkey, has presented research paper on Cybercrimes committed by organized groups including its definition, types, impact scope, emphasizing on the necessity of intensifying International efforts on combating cybercrimes to putting an end to cyber terrorism that considered one of the most dangerous type of  cybercrime for it is the top of AI. He also has addressed the importance of technical, scientific, and legal investigations of cybercrimes; in cooperation with other countries as such crimes are considered transnational ones, using technical skills, and social and security deception.   For more clarification, several cyber attacks on multiple countries have been presented and the negative financial, political, and scientific impact.

      The Senior Prosecutor in the Supreme Court of Appeal in Turkey, Dr Sacit Yilmaz, has submitted a scientific paper on the counterfeit electronic evidence, the mechanism for using them, the submission to relevant courts, and their impact on undermining public confidence in the justice. He also has presented two famous cases the perpetrators have used counterfeit electronic evidence, the mechanism of dealing with such evidence, and the followed procedures to disclose such evidence.

      Judge Ayman Thaher, Judge of the  Ramallah Magistrate Court, has discussed the legitimacy of the electronic evidence by linking between the counterfeit electronic evidence and human rights, and the legitimacy of the evidence in protecting the social system, rights, freedoms, values & principles. He also has asserted on the inadmissibility of invocation of Human rights, as the legal evidence does not violate freedoms, because it is derived from relevant laws and procedures.  Thaher, additionally, has pointed out on the necessity of raising awareness of the public on dealing with technological means and preserving privacy, adding that we live now the Electronic Capitalism era which turned citizens to passive consumption forces. Therefore, we should pay attention to the sources of websites and social media to protect our ethics and social values.

   The First session has concluded by Dr Mohamed Saba'neh from Palestine Ahliya University who has presented CCTV as electronic evidence and the scope of its evidential value before the Palestinian jurisdiction. Saba'neh's paper has included the definition of CTTV, it's legal & illegal usage, the requirements should be met to accept CCTV as proofing evidence, the discretion of the judge to estimate the evidence as a document contains audio and visual recording to accept it, and presenting the advantages and disadvantages as it contributes to crime detection and criminal investigation.  Dr Mohamed has pointed out that CCTV is a double-edged sword, if misused on violating other's privacy for extortion and blackmail, and this considered crime under the provisions of articles 15 and 22 of Decree-law of Cybercrimes law No. 10 of 2018.  For further clarification, he has presented illegal usage situations\ cases of CCTV, as well as the required conditions to consider CCTV as evidence before the court by seeking specialized professional expertise.Findings and Recommendations:

1. The need to enact the necessary legislation in the field of adopting digital evidence as a means of proof before courts which shall facilitate the functioning of the Public Prosecution and judges in processing all types of cases.

2.  To emphasize the importance of the electronic evidence which is the only evidence of this type of crimes, as well as the importance of taking the legal procedures agreed upon under the Law to ensure the credibility of the evidence and its compatibility with the conventions on human rights and the right to privacy and confidentiality guaranteed by the international constitutions, including Palestine.

3. The need to handle the electronic evidence by specialized technicians in both, the stage of search and gathering evidence, an initial investigation. And the need to assign specialized investigators and judges to handle such type of cases. In order to meet the close connection between the significant technological development witnessed by the world and the technological revolution in the field of information and evolution of crimes. Additionally, the need to establish international cooperation among all partners as cybercrime is one of the widespread crimes, and it is trans-border as well.

4. To train and raise the capabilities of those who work in the prosecution of the Cybercrime including law enforcement officers, the Public Prosecution, as well as providing the required tools, devices, and programs which helped on the detection of this type of crime.

5. To hold international specialized conferences on Cybercrimes to cope with the enormous and rapid development in the form of crime, the behaviour of the offender, and also to keep abreast with the procedures followed in prosecuting crimes and international human rights standards.

6. The participants have confirmed the importance of protecting data and the judicial environment, taking into consideration the protection of human rights, by developing a list of the electronic evidences in connection to the digital criminal procedures, including the mechanism of storing judicial data and information, protecting the same, and creating a system that allows the judicial authorities to have access to the electronic information in a short time, which shall positively influence the protection of human rights.

7. To emphasize the important roles of donors and all partner institutions working with the Public Prosecution in an attempt to meet its desired objectives and develop its mechanism of work. We are praising their significant role in supporting the strategic plans and future vision, and we recommend to make available and create new resources in light of the termination of some donors during the past year to ensure the ongoing support to the public prosecution in strengthening the rule of law in Palestine.

8.   The Public Prosecution of the State of Palestine, being the guard of public rights and the society, confirms that it will make every possible effort to continue protecting human rights and fundamental freedoms, and at the same time, it will prosecute everyone threatening the safety and security of the society, or the rule of law.