| dc.description.abstract | Digitalisation changes the methods, the techniques, and the scope of criminal investigations. Gradually more computations are being used to deal with the volume and complexity of data born digital. Whereas traditionally protective legal mechanisms are rooted in the trial stage and focusing on non-digital investigations, it is the investigation stage of criminal proceedings which through digitalisation becomes more proactive, technology-driven, and outcome-determinative. This significant change in the criminal justice system imposes challenges both to the right to a fair trial as enshrined in Art. 6 ECHR and to the reliability of the digital evidence. Those challenges not only exceed single jurisdictions but also domain limitations of law and technology, as they are rooted at the very intersection thereof. Therefore, they can neither be addressed from within national jurisdictions without a transnational framework, nor from within criminal procedure law or technological standardisation alone without interlinking both domains.
This thesis thereof investigates what are the suitable means to develop and implement universal evidence rules and standards which ensure transposition of the fair trial guarantees in digital forensics investigations to improve digital evidence reliability in a consistent, long-term manner.
In order to address this question, the thesis firstly employs a legal doctrinal study to create a conceptual framework which can transpose fair trial principles to the digital evidence domain. Selected general and specific guarantees provided by Art. 6 ECHR were analysed in order to clarify their connection to evidence law by deriving universal evidence rules specifically for digital forensics investigations. These evidence rules fed into a gap analysis exemplifying unaddressed threats to the right to a fair trial rooted in the specifics of digital forensics investigations and the underdeveloped legal standards for digital evidence reliability assurance. The real and imminent legal challenges with digital evidence in practice are demonstrated in the review of the recent Encrochat investigation.
Second, to address the identified challenges to the fair trial-based evidence rules, the thesis examines practical solutions for improvement of digital evidence reliability by integrating legal requirements rooted in the right to a fair trial, with existing forensic methodology and given law enforcement requirements. Action research explores a new reliability validation enabling framework as a formal approach to produce the information necessary for reliability validation by documenting technology, method, and application-level reliability requirements. Further, two cross-disciplinary case studies were performed in order to evaluate (i) whether the proposed framework has practical benefits for digital forensic examiners and law enforcement and (ii) how to improve and concretize it through feedback from practitioners. The thesis further examines machine- and human readable standard expressions for digital evidence that can ensure practical and efficient implementation of reliability validation framework.
The last part of the thesis aligns the results from the analysis of the conceptual framework with the domain specific knowledge gained during the action research to evaluate to what extent the identified impact of digital forensic science and technology on the individuals’ fair trial rights in criminal proceedings is holistically addressed. Given the identified short-comings, argumentative legal analysis is used to examine the feasibility and implications of a new legal principle under Art. 6 ECHR – the right to procedural accuracy – to address the identified challenges and to further guide the development of fair and reliable digital evidence processing in the investigative stage of the criminal proceedings in a consistent and long-term manner. | en_US |
