Profiles of the fight against cybercrime in iure condito and de iure condendo

Abstract

In the digital era, our lives are now inextricably linked to smartphones and tablets that follow us on our every move. It is precisely the itinerant nature of these media that makes them perfect ‘containers’ for hosting so-called cyber-captors, i.e., malware used for investigative purposes, for the prosecution of crimes. Thus, we examine how the case-law and the legislature have tried to rule on the advent of these new means of searching for evidence in an attempt to find a balance between satisfying the public interest in the investigation of crimes, provided for and protected by Article 112 of the Constitution on the principle of mandatory prosecution and Article 15 of the Constitution, which enshrines the principle of inviolability of confidentiality and secrecy of any form of communication. At the same time, however, it should be emphasized that the fight against cybercrime is essential, which is also implemented using such tools and an adequate development of technological resources for cyber security capable of creating systems that are ‘cyber resilient’. In this sense, the dual nature, benevolent and malevolent, of the same means, malware, is brought to light.