In the context that more and more people and companies are investing in cryptocurrencies and given the fact that non-cash payments are becoming the new standard in business transactions, the national legislator has intervened in order to offer a larger protection to these types of transactions, the legislative amendments being necessary in order to cover the full spectrum of electronic criminality.
Thus, Law no.207/2021 has entered into force, amending the Romanian Criminal Code (RCC) in order to implement the EU Directive no.2019/73 and offering new instruments in the fight against fraud and counterfeiting in connection with non-cash means of payment and cryptocurrencies.
The main changes – new crimes sanctioned
Art.250¹ of the RCC was introduced, which incriminates the possession or acquisition for the purpose of a fraudulent use, of a non-cash payment instrument obtained by perpetrating crimes such as theft, forgery, abuse of trust or embezzlement. Also, it is punishable to manufacture, produce, receive, hold, transmit or make available a device or any other means for the purpose of acquiring a non-cash payment instrument by perpetrating one of the above-mentioned crimes.
Furthermore, Art.180 of the RCC has been amended and updates the legal definitions of: (1) non-cash payment instruments, (2) electronic payment instruments, (3) electronic currencies, and (4) virtual currencies, which shows the interest of the national authorities to adapt and offer a larger protection to any means of perpetrating such e-crimes.
One of the main reason of these changes was to assure that that payment transactions made with any kind of non-cash payment instrument (physical or virtual) are included in the scope of the above mentioned crimes, thus broadening the scope of the legal provisions.
The measures adopted aim at increasing the standards of criminal law protection against new forms of crimes perpetrated, specific to technological developments and the information technology field, by regulating effective criminal sanctions, which respond to the international dimension of these new types of crimes.
Is your money safe yet or not?
Although the increased regulation of this sector represents an important step towards broadening the scope of social protection, the challenges for the professionals in this area of practice have become constant and increasingly more complex, requiring regular updates and insight in order to keep up with this new types of crimes and the vast new types of electronic currencies available.
In this context, the judicial authorities will face a number of issues in applying the new legislative provisions, as the reduced number of cases encountered so far in practice may represent a real disadvantage for the professionals which have the task to solve such cases.
One of the specific features of the phenomenon of electronic crime is the adaptability of the criminal means used and their rapid development, the judicial authorities having to adapt to new changes in order to gain a better understanding of this area of crime.
In other words, cybercrime has until recently not been a main focus of the judicial authorities and, as a result, the prosecutors and the legal courts will face a number of difficulties in solving cases of this nature.
Nevertheless, constant updates in this field also obligate the attorneys involved in such cases to keep up to date with all the recent changes in order to collaborate closely, both with the criminal investigation authorities, but also the national courts.
Adapting the methods of investigation
Criminal investigations in the field of computer crime, unlike usual ones, always involve the use of specific techniques and equipment, which are ever more complex, which extend over a long period of time, and which require advanced knowledge in the computer field.
Moreover, while traces left after the perpetration of other categories of crimes generally exist in materiality, traces of computer crimes do not have a material character, as perpetrators use equipment and software specific to the computer field to delete digital evidence or make it unavailable to the authorities, thus hindering the process of solving the case and, implicitly, of identifying the persons responsible.
As a result, the legal professionals in this field will have to collaborate closely with IT experts in order to identify all the traces left after such a crime has been perpetrated and to identify the persons responsible.
Settling conflicts of jurisdiction
Cybercrime has the possibility to extend the scope of the criminal investigation phase over the territory of several countries, thus generating the need for international criminal cooperation in order to solve the case.
Although judicial cooperation in criminal matters is constantly evolving, given the specific nature of the new forms of electronic crime, the elements of foreign origin may cause difficulties in determining the law applicable and, by extension, its resolution.
Taking into account all of these recent changes, innovation and technology become the fundamental core of the cybercrime legal sector, and such abilities need to be used not only to optimise legal services which are provided to victims of these respective crimes, but also to collaborate with the criminal investigation authorities, which are specialized in investigating such crimes.
By Stefan Diaconescu, Managing Associate, Musat & Asociatii