Recently, the Court of Appeals in Criminal Matters and Misdemeanors of the City of Buenos Aires (the “Court”) issued a decision resolving a nullity claim in a case involving computer system interference (Court of Appeals in Criminal Matters and Misdemeanors of the City of Buenos Aires, "N. N. s/infr. art. 184, inc. 6°, CP", April 4, 2017).

The facts of the case are as follows: Mr. Risso and Mr. Marinangeli were accused of interfering with the computer system of their former employer, Banco Itaú. The proceedings against the accused began on the basis of a complaint made by Banco Itaú following an investigation conducted by the security company Root Secure. The investigation established that the bank's Homebanking system had malfunctioned due to "logic bombs" (codes inserted into a computer system that remain hidden until certain preprogrammed conditions are satisfied). The prosecutor sent the evidence to the Cybercrime Division of ​​the Metropolitan Police. Two specialists from the Metropolitan Police, Mr. Marchetti and Mr. Sallis, participated in the proceedings. They stated that Root Secure’s analysis was conducted in accordance with international best practices and that the evidence had been properly safeguarded.

The defendants held that proceedings were null. In particular, they objected to: i) their identification as the perpetrators of the crime, since it was based on their virtual usernames and on an IP address; ii) the way in which the evidence had been stored, given that it was under Banco Itaús control for two years; and iii) the intervention of Mr. Sallis, based on his relationship with Root Secure.

The court of first instance rejected the defendants’ claims. The defendants appealed the decision.

The majority of the Court dismissed´the defendants’ first two claims and upheld the third, stating that the first two claims involved assessments of facts and evidence which should be decided in trial. In particular, the Court held that evidence provided by private individuals should not be automatically dismissed nor subject to the standards as evidence collected by the State.

On the other hand, the Court’s decision upheld the third defense and annulled the interventions of Mr. Marchetti and Mr. Sallis. The Court held that in providing their technical opinion, Mr. Marchetti and Mr. Sallis had participated in the proceedings as experts. Therefore, they should have been called upon to disclose any reasons which could hinder their participation in the case; which, in this case included the relationship between Mr. Marechetti, Mr. Sallis and Root Secure. The court ruled that the participation of these experts hindered the Public Prosecutor's Office’s performance, violating the rights to legal defense and due process.