Organized criminal groups are increasingly (ab)using technology to plan crimes, sell weapons and drugs, and launder money. Despite challenges of lacking legal frameworks and resources, the judiciary has made strides in prosecuting these crimes. The first verdicts involving evidence from encrypted applications Sky ECC and ANOM are expected soon, it was noted at the closing of the eighth Judicial Forum for BiH in Sarajevo.
Darko Soldat, prosecutor at the Cantonal Prosecutor’s Office in Sarajevo, stressed that the domestic judiciary must not delay using evidence obtained via encrypted communication apps. Numerous examples of case law exist across Europe and the region.
“After several European countries, including the Netherlands, Belgium, Austria, Italy, and Croatia, delivered final judgments accepting all evidence from encrypted communications as lawful, Bosnia and Herzegovina’s first judgments are expected next year”, said Prosecutor Soldat.
Soldat pointed out that the next challenge would be for courts to accept electronic evidence voluntarily shared with BiH by other countries as lawful, as provided for under the Convention on Cybercrime.
“In the near future, most evidence from other countries will be voluntarily disclosed to BiH’s investigative bodies, and the courts must quickly decide to accept such evidence as lawfully obtained. Soon, domestic courts will also evaluate evidence collected using artificial intelligence, which will significantly alter the reality of criminal trials in BiH”, he added.
Mirjana Lazarova Trajkovska, former judge of the European Court of Human Rights and judge of the Supreme Court of North Macedonia, explained that the legality of digital evidence, especially when the evidence originates in one country but the criminal activities occur in the prosecuting country, is crucial for a fair trial.
“The European Court of Human Rights has rich jurisprudence that elaborates on standards and principles for these procedural aspects. For example, in the case of Khan v. The United Kingdom, the Court highlighted the importance of public interest before private rights when dealing with evidence obtained through new technologies. For a trial to lead to a fair outcome, the law must clearly define its goals, and any intrusion into privacy or other rights must be necessary and justified in a democratic society”, Lazarova Trajkovska emphasised.
Judge Lazarova Trajkovska also warned that new technologies and societal developments bring new forms of crime to which the judiciary must be prepared to respond.
“Artificial intelligence is used not only for good but also for criminal activities. False news spread through the internet can incite violence, hatred, or cause financial losses for individuals or legal entities. Money acquired through these types of crimes is often reinvested in further criminal activities. Hence, cybercrime encompasses a broad range of activities, including financial crimes, computer fraud, cyber violence, and counterfeiting”, explained Judge Lazarova Trajkovska.
With the growing popularity and availability of artificial intelligence, BiH is seeing an increasing number of reports of the misuse of these tools.
“The development of AI tools like deepnude, which are publicly available online and create fake sexually explicit photos or videos, has led to a sharp rise in blackmail cases or reputational damage to victims. Photos from social media can easily be taken and processed through deepnude tools to create highly realistic images of partially or fully naked individuals in minutes”, warned Vahidin Đaltur, a permanent expert witness in information and communication technology.
“Given that these tools are becoming more sophisticated by the day, proving that an image is fake is very complex and challenging. In the future, I expect a significant rise in such cases, and proving them will require the use of other AI-based tools”, Đaltur concluded.
The Judicial Forum for BiH was organized by the Constitutional Court of BiH and the AIRE Centre – Western Balkans Program, in cooperation with the High Judicial and Prosecutorial Council of BiH, and supported by the Government of the United Kingdom.