Electronic evidence in criminal proceedings.

In the developing information society, many relationships between people are carried out in electronic form. These relationships create for people's rights and responsibilities and become a full-fledged relationships.

In criminal law and process of electronic form documents is also gaining use, and electronic documents are widely used by the prosecution as evidence of guilt of suspects and accused persons.

Criminal procedure law, include electronic materials, classified documents, and physical evidence simultaneously. At the same time, not all documents are the evidence.

Thus, article 98 of the criminal procedure code of Ukraine determines that evidence are material objects, which was an instrument of criminal offense, retained traces of it, or contain other information that can be used as proof of facts or circumstances established during criminal proceedings including the items that were the object of criminal unlawful actions, money, valuables and other items acquired by criminal through illegal or received by the legal person as a result of committing a criminal offence. The documents are evidence only if they contain the above signs.

In turn, the concept of a document set out in article 99 of the criminal procedure code of Ukraine.

So, a document is created to save information of the material object that contains fixed by means of written signs, sound, images and the like information, which can be used as proof of facts or circumstances established during criminal proceedings.

The documents, provided the presence information provided above may belong to, including the materials of photography, sound recordings, videos, and other media (including electronic).

In addition, the documents shall be recognized as made in the manner prescribed by the criminal procedure code, records of procedural actions and annexes thereto, as well as the media, which use technical means of recorded proceedings.

The materials in which the recorded actual data about illegal acts of individuals and groups of individuals, collected by operational units in compliance with the requirements of the law of Ukraine "On operational-investigative activities", subject to compliance with the requirements of article 99 of the UE, are documents and can be used in criminal proceedings as evidence.

Side of criminal proceedings, victim, representative of a legal entity concerning which the implementation must provide the court with the original document. The original document is the document itself and the original electronic document is his reflection, which is given the same value as document.

Law of Ukraine No. 2213-VIII of 16.11.2017 adopted a new wording of part four of article 99 of the criminal procedure code.

Now, the duplicate of the document (a document produced in the same way as its original), and copies of the information contained in the information (automated) systems, telecommunication systems, telecommunication systems, their integral parts are made by the investigator, Prosecutor with the assistance of a specialist, recognized by the court as the original document.

Previously, the norm according to which a duplicate of the document (a document produced in the same way as the original) could be recognized by the court as the original document.

That is if earlier the court had a choice whether or not to recognize a duplicate of the original document, now this rule has become mandatory and the court is obliged to accept a duplicate original document.

While this rule is written in such a way that the prosecution can try to interpret to recognize any duplicate made by the investigator or the Prosecutor the original no matter they made it themselves or with the assistance of a specialist.

You can definitely argue, that copies of information contained in the information (automated) systems, telecommunication systems, telecommunication systems, their integral parts, it is necessary to recognize the original only if they are made with the involvement of a specialist.

Recall that a specialist in criminal proceedings is a person possessing special knowledge and skills to use technical or other means and can provide advice during pre-trial investigation and judicial proceedings on issues that require appropriate special knowledge and skills. He may be called upon to provide direct technical assistance (photography, mapping, plans, drawings, samples for examination, and the like) parties to criminal proceedings.

Temporary access to the documents is to provide the side of a criminal proceeding by a person which are in the possession of such things and documents, to examine them, make copies of them and remove them (to be cut).

Temporary access to electronic information systems or parts thereof, mobile terminal communication systems is performed by removing the copy of the information contained in such electronic information systems or parts, the mobile terminals of the communication systems, without their withdrawal.

Temporary access to things and documents is carried out on the basis of the decision of the investigating judge or the court.

Things and documents to which access is prohibited are:

1) correspondence or other forms of exchange of information between the advocate and his client or any person representing his client, in connection with the provision of legal assistance;

2) objects that are attached to such correspondence or other forms of information exchange.

Law No. 2213-VIII of 16.11.2017 established that at the request of the owner the person who makes the determination on the temporary access to things and documents should be left a copy taken of the original documents. Copies of documents that are removed or withdrawn originals which are produced using copy machines, electronic tools owner (with his consent) or copiers, electronic means the person who presents the decree on temporary access to things and documents.

Therefore, if the owner has a desire to retain copies of seized electronic documents, but I have to say about it.

Temporary seizure of property can also be carried out during a search, inspection.

Temporary seizure of electronic information systems or parts thereof, mobile terminal communications systems for the study of the physical properties that are important for criminal proceedings is only possible if they are directly specified in the court order.

Prohibited temporary seizure of electronic information systems or parts thereof, mobile terminal communication systems, except when their provision, together with the information that they contain is essential to the conduct of expert examination, or if such objects obtained through the Commission of a criminal offense or is a tool or a weapon of its Commission, and if access to them is limited to their owner, the owner or holder of or connected with overcoming of a system of logical protection.

 In accordance with the requirements of the Scientific-methodical recommendations on preparation and purpose of judicial examinations and the expert researches, approved by the Ministry of justice of Ukraine 08.10.1998 № 53/5 (in edition of order of Ministry of justice of Ukraine 26.12.2012 No. 1950/5) (clause 13.3). During the examination of computer equipment and software products for the study of information contained on computer media, the computer expert is itself a carrier, and if necessary, a computer unit (computer means, which includes the investigated media).

To save given to the study of media in working condition they are provided in separate packages. System units of personal computers are available in packages that exclude access to the media or directly connect the system unit to the mains power supply.

To solve identification tasks in relation to documents produced using computer technology, this technique is available in the kit (system unit, installation disk with the printer driver or multifunction devices, connectors and network cables, printer). The direction of the computer equipment for examination any work on it is not allowed. The solution to identity issues is part of an integrated computer and technical expert examination and technical examination of documents in the presence of an electronic original document (file). The seizure of computer equipment, its inspection must be carried out with the participation of a specialist in the field of computer technology.

This means that the security forces remains a lot of formal grounds for withdrawal of the equipment. For example, if necessary the examination or, if access to the servers is password-protected. In this case, any time limit of the examination and, accordingly, removal of equipment not installed.

Physical evidence or a document provided voluntarily or by court decisions, is kept by the parties of criminal proceedings, which he provided. The side of a criminal proceeding, which provided the material evidence or document that is required to keep them in condition suitable for use in criminal proceedings. Evidence obtained or seized by the investigator, Prosecutor, inspected, photographed and described in detail in the inspection report.

Storage of material evidence by the prosecution is carried out according to the requirements of the Order of storage of material evidence by the prosecution, their implementation, technological processing, destruction, implementation costs associated with their storage and shipment, the safety of temporarily seized property during criminal proceedings, approved by the resolution of the Cabinet of Ministers of Ukraine from November 19, 2012 No. 1104.

However in the order do not peculiarities of the storage of electronic evidence.

As a General rule, physical evidence, except for documents that are stored together with the materials of criminal proceedings, must be properly Packed and sealed.

The packaging method should ensure that the inability to substitute or modify the content without violating its integrity and the safety of taken (obtained) evidence from damage, deterioration, degradation or loss of properties due to which they have probative value.

The package (the tag) shall be signed by the persons participating in the procedural action and the information about the contents of the package, the name of the conducted procedural actions, the date of its implementation and the number of criminal proceedings.

Condition evidence storage should be ensuring the preservation of their essential characteristics and properties.

Taken (received) by the prosecution evidence is stored together with the materials of criminal proceedings in an individual safe (metal Cabinet) of the investigator who carries out such production.

Documents that are material evidence shall be stored nested between clean sheets of paper in envelopes. In such documents it is prohibited to make any marks, inscriptions and bend them. In the case of a large number of documents they occur in a separate package. On the envelope (package) displays the list of documents enclosed.

The document must be stored for the entire duration of criminal proceedings. At the request of the owner of the document, the investigator, the Prosecutor, the court may give copies of this document, if necessary, his original, turning instead to the criminal proceedings certified copy.

Documents that are material evidence shall remain in the materials of criminal proceedings during the whole time of storage.

Thus, it should be stated that the seized electronic evidence as the documents must be stored nested between clean sheets of paper in envelopes together with the materials of criminal proceedings in an individual safe (metal Cabinet) the investigator must be properly Packed and sealed. In practice they can be on electronic media (CDs, best sellers, hard drives, etc.), which should be Packed and stored in this way.