As part of the eighth edition of the Judicial Forum for Bosnia and Herzegovina—one of the most prominent legal gatherings in the country—we had the opportunity to speak with Judge Mirjana Lazarova Trajkovska, a leading regional expert in the field of human rights, former judge of the European Court of Human Rights in Strasbourg, and currently a judge of the Supreme Court of North Macedonia. This year’s Forum focused on the harmonisation of judicial practice in prosecuting cases of organised crime and corruption, with particular emphasis on the challenges posed by new technologies. In the interview, Judge Lazarova Trajkovska shared her experiences and insights on the complex issues surrounding the prosecution of cybercrime, the admissibility of digital evidence, and the regulation of artificial intelligence, offering an overview of key standards established by European courts.
What are the most common challenges faced by judicial, investigative, and law enforcement authorities in prosecuting offences involving new technologies, including cybercrime and the (mis)use of technology in crimes such as money laundering, arms trafficking, and drug trafficking?
Mirjana Lazarova Trajkovska: New times, new technologies, and societal development inevitably give rise to new forms of crime. Artificial intelligence is increasingly used not only for beneficial purposes but also for criminal activities. The internet serves as a vehicle for the dissemination of false information, which may lead to violence, hatred, and financial loss—both for individuals and legal entities. The proceeds of such criminal activities are often reinvested into further illicit enterprises. Consequently, cybercrime encompasses a wide range of criminal offences, including financial crime, computer extortion, cyber violence, cyber harassment, and forgery.
The European Commission classifies cybercrime into three categories:
- Internet-specific crimes, such as hacking attacks on IT systems;
- Online fraud and extortion, often via identity theft; and
- Dissemination of illegal and prohibited content, including child pornography and material inciting racial hatred, terrorism, xenophobia, or the glorification of violence.
Prosecuting these types of crime requires investigative actions led by professionals equipped with technical knowledge and digital forensics skills to lawfully obtain and properly qualify the relevant evidence.
Investigative authorities face numerous challenges in prosecuting cybercrime, particularly due to the complexity and technical demands of digital investigative methods. For police officers, prosecutors, and judges, this necessitates continuous education and a deep understanding of how specific technological activities may constitute criminal offences—such as money laundering conducted online. Modern challenges call for the development of new skills and a thorough familiarity with the legal standards and principles established by two key European courts: the European Court of Human Rights (hereinafter: ECtHR) and the Court of Justice of the European Union (hereinafter: CJEU).
One of the most pressing legal issues today concerns the admissibility of digital evidence, especially that obtained through international legal assistance, such as data from Sky and ANOM. What should regional judiciaries be mindful of when handling such evidence, and what standards have been set by European courts?
Mirjana Lazarova Trajkovska: The lawfulness of digital evidence—particularly where such evidence has been obtained on the territory of another state while the criminal acts and their consequences occurred within the prosecuting state’s jurisdiction—is crucial for ensuring the fairness of criminal proceedings. The ECtHR has developed an extensive body of case law addressing the procedural standards and principles governing these issues.
In Khan v. the United Kingdom, the Court emphasised the need to balance the public interest against the individual’s right to privacy when evidence is obtained via new communication technologies. For proceedings to result in a fair trial, it is essential that they are governed by law, serve a legitimate legislative aim, and that any interference with the right to privacy or other fundamental rights is justified and necessary in a democratic society. The quality of the law is of particular importance, as established by the Court in Roman Zakharov v. Russia.
Furthermore, in Big Brother Watch and Others v. the United Kingdom, the Grand Chamber of the ECtHR conducted an in-depth analysis of relevant case law concerning the legitimacy of objectives pursued and the necessity of such measures in a democratic society.
How can the Convention on Artificial Intelligence recently adopted by the Council of Europe assist member states in developing legal frameworks and solutions? What are the most important standards established by this Convention, and what does the future of AI use and regulation look like?
Mirjana Lazarova Trajkovska: The Framework Convention on Artificial Intelligence, Human Rights, Democracy, and the Rule of Law (hereinafter: the Convention), recently adopted by the Council of Europe, is the first legally binding international treaty in this field. Its objective is to ensure that the deployment and functioning of AI systems are fully aligned with human rights, democratic principles, and the rule of law—particularly in an age where technological progress and innovation are inseparable from human development. The Convention complements existing international human rights standards and addresses legal gaps that arise from the rapid pace of technological advancement.
It regulates the use of AI by public authorities, including private actors acting on their behalf. The Convention offers signatory states two pathways for aligning their legal frameworks with its principles and obligations in the regulation of the legal sector: states may choose to be directly bound by the Convention’s provisions or, alternatively, implement other measures to ensure compliance with the Convention, while fully upholding their international obligations concerning human rights, democracy, and the rule of law.
Although the Convention does not require states to apply its provisions to activities related to national security, it nonetheless obliges them to ensure that such activities are conducted in accordance with international law and in a manner that respects democratic institutions and processes.
This interview was originally published in Legal Chronicles: Artificial Intelligence, Digital Evidence and Cybercrime: An Interview with Judge Mirjana Lazarova Trajkovska. Interview conducted by Amina Hujdur, Communications and Public Relations Manager of AIRE Centre’s Western Balkans Programme.