The city of Buenos Aires organized an adversarial system, as specifically provided in article 13, 3 of the Constitution of CABA.
Thus, the new procedural system has been established in the city from 2307-law enacted on 3/29/07, promulgated on 8/5/07 and and published on 30/4/07.
Essentially, this involves the acceptance of basic rules such as the following: there can not be allegation prior to conviction, the court is unable to investigate and its supposed to be neutral and guarantee the process, the parties have the same guarantees, orality from the beginning of instruction, the judge's decision is limited to the information given from the parties during oral hearings; deformalization of the investigation, expansion of the powers of prosecutors -who have transformed into the real protagonists of the system-. They are in charge of criminal investigation from the beginning until the case is brought to trial.
In this context, in 2008, law 26.388 was passed. This law included a number of cybercrimes, updating the Argentine Criminal Code. That’s because the legal guarantees that were supported by certain rules, responded to the technological age of the time in the which our code was approved.
While progress is important, there is still much to be done in criminal and procedural law.
Theres no crime without a previous law, that’s a constitutional rule (art. 18 CN). Altough, criminal interpretation by analogy is prohibited. The development of new technologies left many legal rules useless, to the point that, in some cases, there were judges who had declared the luck of penalty of certain behaviors that deserve legal protection. In other cases, judges had to stretch its interpretation in order to convict the conducts developed.
The characteristics of cybercrime warrant specialized treatment. This is due to the frequent international nature of these offenses, the facility to commit them, the difficulties to investigate them and to collect and preserve digital evidence. Also, practice shows a difficulty to identify the perpetrators.
Take charge of investigating such crimes efficiently, implies the need to adjust the laws of those special substantive rules on cybercrime that today require an autonomous mode. It is required to adapt procedural rules; train prosecutors and judges in the essence of this new way of designing a case. It is also necessary to count on a technical staff in the police department and in the prosecutor´s office in order to help the prosecutors in the cases mentioned.
II.-The need to specialize
The expertise in cybercrime is a need in the usual practices of prosecutors. There has been a progressive increase in the number of criminal investigations related to the use of new technologies, which will increase with the next transfer of crimes from the ordinary National Justice to the Justice of the Autonomous City of Buenos Aires.
It is a reality that the generalization of those instruments in the development of social relations, has determined the emergence of new forms of crime, also enabling dynamics and mechanisms, as yet unknown, in the commission of illegal acts of a more traditional nature. Likewise, today's technology provides important tools for the investigation of crimes that require expertise and constant training.
In order to respond to this situation, it is thought that the need to create a Special Prosecutor Office on Cybercrime is essential, according to the principle of unity of action and in order to ensure efficient and coordinated intervention of the Local Public Prosecutor Office. Also, to strengthen the constitutional principle of equality of all citizens and legal certainty.
In fact, Resolution 501/2012 of the General Prosecutors Office, approved –at the beginning for a period of one year- the implementation of a team specialized on cybercrimes, with special competence only in the city of Buenos Aires, providing exclusive jurisdiction since November 15, 2012, team that I lead.
III. - Functions
The objectives of the Specialized Cybercrime Prosecutors Office are:
a) Investigate cybercrime where CABA justice is competent and crimes committed using computer technology.
b) Coordinate investigating strategies appropriate to the special units of various specialized security forces -Argentina Federal Police and Metropolitan Police, National Gendarmerie, and the Judicial Investigation Corps- as well as establishing links with other organizations whose coordination in certain aspects can be determinant for the development of investigations -National Personal Data, Central Bank, Ministry of Justice of the Nation, ministries, and others-.
c) Development of action protocols to facilitate and standardize the criteria of action in the investigation of crimes that require investigation of digital evidence, which will be coordinated with the Department of Crime Policy, who will evaluate the needs and realities that impact in the subject.
d) To promote institutional cooperation agreements with the private sector to achieve efficiently the fulfillment of the requirements made by the justice. (Google, Microsoft, free market, FiberTel, etc..) And the various cameras that nucleate those companies.
e) Coordinate with the Judicial Training Centre, the training of the Specialized Team on Cybercrime in the investigation of crimes committed via the Internet and basic courses of action for all members of the Public Prosecutors Office.
f) Generate training exchanges and cooperation between the different provinces and CABA on computer crime, with the aim of guaranteeing a similar performance and maintenance of similar criteria in the interpretation and application of standards, and to facilitate proper coordination in those investigations in this area, in which criminal activity is developed and / or produces its effects in different geographic locations of the country. Likewise, exchange experiences among prosecutors from different provinces, about ongoing procedures, analysis and evaluation of legal problems.
g) Promote the organization and training activities with countries with experience in investigating cybercrimes.
h) Prepare and submit annually to the General Prosecutor a statistical report on the procedures and cases investigated by prosecutors specializing in computer crime, both quantitative and qualitative aspects.
i) Celebrate cooperative agreements with non-governmental organizations and foreign nationals, especially with regard to the fight against child pornography on the Internet.
In this line, it was necessary to define the area where the activity of the specialized team on cybercrime would work, since the development of information technologies increases every day, developing new forms of crimes that require legal protection and consequently present difficulties for the purposes of their investigation.
However, this fact should not lead us to consider that any criminal conduct related to the use of these technologies, or common crimes that require digital evidence, should be included in the category in question. As this would lead to a distortion of the concept and overflow even own approach of specialization. It is necessary to define the object of activity in this area of work in order to give greater operational and effectiveness. So, the specialized team will only intervene when the use of these technologies prove to be decisive in the development of criminal activity, or that circumstance involving greater complexity of investigation and difficulties in identifying the authors of the crime.
It is not easy to define the objective framework of activity of this specialty, since the rapid development of science and technology, advise against a closed catalog that limits the types of crimes that can fall under this category of cybercrimes. This, because it is likely the next appearance of new forms of crime or committing new means of existing crimes, in which the key element is also the use of information technology.
The circumstances described above, indicated that the initial catalog of computer crime offenses, are then divided into three categories exposed, necessarily remain open and their inclusion will be assessed prior to time by the Department of Crime Policy.
III A) Crimes in which the objects of criminal activity are computer systems:
- Crime of damage: 26.388 law incorporated in its second paragraph -article 183 CP: "The same penalty shall be incurred by anyone who alters, destroys or mutilates data, documents, programs or systems, or sells, distributes, puts or make circulate or in a computer system, any program designed to cause harm"
- Damage compounded: 26388 law adds two new aggravating to art. 184 CP: 5) "run in files, records, libraries, .... or data, documents, programs or systems of government"; 6) "run on computer systems for the provision of health services, communications, provision or transportation of energy, transportation or other public service "
III B) Crimes in which criminal activity is run through computer media.
- Child pornography: art. 128 CP punishes anyone who produces, who finances, offer, trade, publishes, facilitates, bruits or distributes, by any means, any representation of a child under 18 years engaged in explicit sexual activities or any representation of their genitals predominantly sexual purposes, like who organizes live shows explicit sexual representations where these children participate offering and distribution of images related to child pornography possession and distribution purposes. Shall be punished with imprisonment from four months to two years if he was in possession of representations of those described in the previous paragraph, unequivocal purpose of distribution or marketing.
- Shall be punished with imprisonment from one month to three years the person who facilitates access to pornographic or provides any pornographic material to minors of 14 years.
- Crime of threats (art.149bis CP) committed by computer and / or media when the importance and complexity of the conduct made the need for special treatment.
- Supply of pornography: The art 62 CC punishes anyone who provides or permits a person under 18 access to pornographic material.
The reality of computer crimes is that they are uncontrollable and their effects can produce devastating results.
In this awareness, the creation of the team specialized on cybercrime, represents a major institutional challenge for the team that materialize this problem every day.
Prosecutor – Specialized Office on Cybercrime