Technological advancements have made it possible for anyone, anywhere in the world, to use the internet. Millions of people around the world spend at least some portion of their lives in cyberspace every day. The online world also fosters criminal activity. Cyberspace, for many, appears to be an area beyond the jurisdiction of law enforcement agencies, and combined with its relatively high level of anonymity, it inspires a sense of impunity among online criminals.
Currently, Polish criminal law covers purely internet-related crimes, such as hacking (Article 267 of the Penal Code), breaching the integrity of information (Article 268), breaching the integrity of a computer system as a result of using malicious software (Article 269 of the Penal Code) or computer fraud (Article 287 of the Penal Code).
When such a crime is committed, the question naturally arises as to where it was committed. The answer "on the Internet" has no legal validity. Determining the actual location of the offense determines whether or not Polish criminal law should be applied, and also determines the appropriate prosecutorial unit, and subsequently, the court, to hear the case.
Determining where a crime was committed is complicated by the fact that the internet is cross-border, meaning the perpetrator's criminal activity can span multiple locations. It's easy to imagine a situation where a perpetrator, while residing in country A, uses a computer network located in country B to post data on a website administered by country C, which can be accessed worldwide. Therefore, the fundamental problem in determining where a crime was committed is that the internet's cross-border nature means that the criminal can operate in a specific location—wherever they are physically located—but the effects of their actions can be realized anywhere in the world, meaning wherever the content is displayed on the recipient's device. This creates a situation where even the perpetrator may not be able to predict where the consequences of their actions will occur.
When analyzing Polish criminal law*, attention should be paid to Article 5 of the same Act, which establishes the obligation to apply Polish criminal law to a perpetrator who committed a crime within the territory of the Republic of Poland or on board a Polish seagoing vessel or aircraft. In Article 6, paragraph 2 of the same Act, the legislator explains that:
A prohibited act is deemed to have been committed at the place where the perpetrator acted or omitted to act to which he was obliged, or where a consequence constituting a feature of the prohibited act occurred or was intended by the perpetrator to occur.
However, it should be noted that this provision cannot be applied directly to crimes committed online, as the World Wide Web cannot be considered an actual "location." So how can we determine the location of a crime committed online?
Due to the fact that Article 6 paragraph 2 does not resolve this issue, it becomes necessary to use the auxiliary criteria expressed in Article 32 of the Code of Criminal Procedure, which states:
§ 1. If the place where the offence was committed cannot be determined, the competent court is the one in whose district:
1) the offence was discovered,
2) the accused was apprehended,
3) the accused permanently or temporarily resided before committing the offence – depending on where the preparatory proceedings were first initiated.
This issue was resolved in paragraph 114 section 2 of the Regulation of the Minister of Justice of 7 April 2016 – Regulations on the internal functioning of common prosecutor’s offices, which uses a hybrid of Article 6 paragraph 2 of the Penal Code and Article 32 of the Code of Criminal Procedure and establishes that:
In cases involving crimes committed via IT and telecommunications networks, preparatory proceedings are conducted or supervised by the unit in whose jurisdiction the perpetrator operated the crime was discovered is responsible for conducting or supervising the proceedings .
This regulation makes it almost always possible to determine the jurisdiction of a law enforcement agency. However, if the above solution proves unreliable, Article 32, paragraph 3 of the Code of Criminal Procedure should be applied, which requires that a case in which the jurisdiction of a law enforcement agency cannot be determined in accordance with the above criteria be referred to the court having jurisdiction over the Śródmieście district of the capital city of Warsaw.
It's worth noting that, due to the cross-border nature of the internet, dual prosecutions often occur. This means that if a perpetrator acts in country A and a result occurs in country B, both countries A and B will take action to punish the perpetrator. To counteract the negative effects of dual prosecutions, Council Framework Decision 2009/948 was issued. Its goal is to prevent jurisdictional conflicts in criminal matters. This objective is based on the obligation of EU law enforcement agencies to cooperate in this regard, in particular by exchanging information in cases of suspected multiple prosecutions in different Member States in relation to the same crime, as well as by developing a common framework for transferring prosecutions to one of the competent countries. This transfer should occur to the country where the majority of the criminal act was committed or to the country where the act caused the greatest damage.**
We would like to inform you that the next alert from the #technoglogy series, due to the National Independence Day falling on November 11, will be published on November 18, 2021
* Act of 6 June 1997 - Penal Code (Journal of Laws of 1997, No. 88, item 553).
** https://codozasady.pl/p/sciganie-przestepstw-popelnionych-w-cybermiejsce (accessed: 3 November 2021)
This alert is for informational purposes only and does not constitute legal advice.
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