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Title: Een coherent regime voor strafrechtelijke zoekingen in de fysieke en digitale wereld.
Other Titles: A coherent criminal procedure regime for search in the physical and digital world.
Authors: Conings, Charlotte
Issue Date: 12-Dec-2016
Abstract: The Belgian criminal procedure regime for searches is very fragmented. It contains specific regulations for, amongst others, house search, frisking, strip search, wire- and data tapping, visual observation and infiltration. This approach forms part of a bigger legal picture in two different ways. On the one hand, the fragmentation into detailed subregimes is an often criticised characteristic of the Belgian Code of Criminal Procedure as such. On the other hand, the fragmented approach is not typical Belgian but is also known in other parts of Europe. To a certain extent this can be attributed to the severe interpretation of the legality principle of art. 8,§2 ECHR by the European Court of Human Rights.
However, such fragmented criminal procedure regime for searches causes numerous problems and renders evidence gathering inefficient. Especially digitalisation of different types of evidence exposes the complex, unclear, out-dated and inconsistent character of the existing legal framework.
This research proposes a simplified and clearer comprehensive legislative framework for searches aimed at gathering criminal evidence, which can make national and international evidence practice more efficient. The simplified framework divides the searches into five different categories, mainly based on the intrusiveness of the search. It does no longer focus on location and physical places, which are less important in the digitalised society, but it looks at (private) spheres and surroundings, which are less location-dependent and include digital privacy. According to the proposal, telecommunication is no longer a decisive criterion, as the framework contains a coherent regime for the whole service industries. The main criteria to distinguish searches are the amount and sensitivity of the information expected to be exposed, the degree of privacy in the surroundings to be searched, the secrecy of the search and the risk of disloyal police conduct. The flexibility of the proposed framework is counterbalanced by a more severe response to irregularities in evidence gathering, based on reasonableness of law enforcement behaviour. The proposed framework is suitable for use in a digitalised society and more resistant to future technological evolutions.
At the international level, the digitalisation and growing independence of physical location challenges the understanding of territorial sovereignty. International law focuses on the place where the sought after data are located. When a government wants to access data stored abroad, it must rely on international cooperation. This approach is however untenable in the digitalised society where a large amount of data is stored abroad but used domestically. The research proposes a new approach which focuses on the location of the subject of the search (person). The proposed framework is therefor more practical and foreseeable and provides proper human rights protection, at both the national and international level.
Publication status: accepted
KU Leuven publication type: TH
Appears in Collections:Institute of Criminal Law

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