The jurisdiction of computer cybercrime includes two kinds of situations: First, which country is responsible for the crime. Second, which court in the country is under the jurisdiction of the crime? The former is the jurisdiction of criminal substantive law, that is, the issue of the space effectiveness of criminal law, which is a kind of static criminal jurisdiction. The latter is the jurisdiction of the trial in criminal proceedings, is a dynamic criminal jurisdiction.
In general, the criminal jurisdiction of computer cybercrime should be applied in accordance with the relevant provisions on the space effectiveness of the general principles of criminal law, however, how to solve the conflict between new computer cybercrime and traditional criminal jurisdiction has become a difficult topic in the field of criminal law.
It is obvious that Spanish Courts cannot assume knowledge of any type of crime that occurs, even when the actor or victim is a national Spanish, as well as the same rules for determining the competence in the scope of the civil process that in the scope of the criminal process.
In terms of cybercrime, we may think that it is abandoned some form said imperative characteristic of the criminal process, since when not existing exact or clear rules or criteria to be able to determine, for example in this case, the jurisdiction of jurisdictional bodies to hear crimes committed through of the internet, they will have to look for solutions as these issues are not solved by the European Union legislation.
Although the Spanish Supreme Court has wanted to establish a delimitation of the competence attending to each type of crime in order to establish thus the place of commission according to the concrete case, many courts have raised issues of competence before it, since there are crimes that have been committed to through the internet, so we understand that it is necessary to analyse the three main theories applied in these cases.
1.- Theory of activity
In regards of the theory of activity, by which crime is understood committed in the place from where the crime is carried out, and based on what is established by the Spanish Supreme Court in March 12, 2009, “the time and place of commission of the crime would be that in which the alleged perpetrator of the crime commits it through the server”.
There can be a close relationship between the web site and its owner. After the web site is registered with the server, as if the personal residence is located in a certain geographical area, it is consistent, and the perpetrator can accept and send messages on his own website, obviously in line with this requirement. However, if the site’s activites are confined to the field of the country and the site itself does not have the function of uploading and downloading information, then only its own country has criminal jurisdiction over the wrongdoing. If the owner of a web site takes the initiative to open a web site and send data messages to citizens of other countries outside of the country, or other citizens of the country take the initiative to download or upload the information, it can cause damages to many countries, Then the visit of citizens from other countries makes the site and the jurisdiction closely integrated, however, the website owner may also be subject to the jurisdiction of many countries that he has never visited before, which eventually leads to the conflict of jurisdiction. Therefore, it is clear that there are still many questions about determining the web site as a factor of criminal jurisdiction, which is not conducive to resolving conflicts of jurisdiction in various countries.
2.- Theory of the result
In the case of the example that we are considering, from the point of view of the theory of the result, we have to consider that it is most likely that, regarding the crime of dissemination of child pornography through the internet, spread in more than one place, since it is a publication on any web page, it will have an impact on multitude of countries. In this way, we can consider that in this field the theory does not it is very effective, however, if it is a crime against the estate itself, as in the case of the computer scam, and the Spanish Supreme Court has considered the general rule attributed to the place in which the economic damage or injury to the taxpayer has occurred through of the patrimonial displacement that corresponds, normally, with the place in which is the current account from which the money was withdrawn.
3.- Mixed theory
For this theory, the place of commission of the crime is understood both from the one in which the action was carried out, and where it occurs. We could suppose, based on what was established by the Supreme Court, that this theory would be considered applicable to consider competent that judicial body in which the judicial proceedings had been initiated for the facts considered a crime.
This was consolidated in the non-jurisdictional Plenary of the Second Chamber of the Supreme Court, of February 3, 2005, in which this theory is adopted to deal with the attribution of competence in computer crimes. Thus, “the crime is committed in all jurisdictions in which an element of the type has been carried out. Consequently, the Judge of any of them who has first made the procedural proceedings, will be in principle competent for the investigation of the case “
Are there any proposals from the European Union?
The Convention on Cybercrime was signed in Budapest, on November 23, 2001. It entered into force in July 2000; however, it was not ratified by Spain until 2010.
Regarding the legal text and despite being, at the international level, the only instrument that we can currently find in relation to crimes committed through the Internet, it does not establish any criteria for the determination of the competence
In this type of crime, it only alludes constantly to the need for international cooperation between States to go against computer crime, without establishing rules that delimit the jurisdiction in relation to the commission of a cybercrime.
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