The dissertation investigates the problematic theoretical and practical aspects of the use of information from electronic media within criminal procedural evidence. The author reviews the scientific works on the described issues and identifies the most promising directions of scientific research. Due to comparative point of view the most valuable foreign experience in the use of information from electronic media as evidence within criminal proceedings was observed, the most rational practices were highlighted, and the proposals aimed to improving the regulatory and law enforcement components were made.
The dissertation analyzes the terms proposed by science and practice, denoting the subject of the research, critically interprets their validity and proposes the use of the most rational ones from a technical and philosophical point of view. It is proved that the categories: "data", "information", "intelligence", "knowledge" are not identical or synonymous, as well as the adjective variants: "digital", "electronic", "computer", "machine". The following terms are proposed: a) digital data – to denote discrete signals of different nature (magnetic, optical, electronic); b) machine media, digital data storage, digital data storage media – to indicate the technical means intended for the transmission of digital signals in time and space; c) digital information – to denote stored (static) and presented (dynamic) in the form of a file (at the physical and logical levels) of a complete set of data that make sense in a form suitable for human perception; d) digital information carrier – to indicate the file.
Considerable attention is paid to the characteristic features of digital information, which should be classified as follows: 1) features that follow from the essence of digital information, which are related to: a) the information itself;
b) with its carrier; 2) signs of digital information, which are manifested during the evidence (signs of digital evidence). Taking into account the selected features, the author proposes to consider digital evidence: a) digital information obtained by reproducing the contents of a file, stored on digital media (theoretical definition); b) digital information obtained in the way, prescribed by the CPC, on the basis of which the coroner, investigator, prosecutor, investigating judge and court establish the presence or absence of facts and circumstances relevant to criminal proceedings and subject to proof (normative definition). A file (a medium of digital information) should be considered as the source of digital evidence.
The author emphasizes that in science and practice there is no common understanding of the place of digital evidence in the system of procedural sources: arguments are made both in favor of traditional (material evidence, documents), and in favor of a separate group of procedural sources (digital or electronic evidence). Due to the legal nature of digital evidence and the most effective way of using it while evidence, the allocation of digital media in a separate procedural source of evidence is argued.
In the context of defining the categories "original", "duplicate", "copy" in relation to digital information, the author proves the need in use of a differentiated approach: a) in theoretical, regulatory and practical areas; b) from the point of view of the current law (de lege lata) and the one, whose adoption is desirable (de lege ferenda). In correspondence of the current version of the CPC, digital media, as a general rule, must be presented in the original, and exceptions are allowed only in cases expressly provided by the law. From the point of view of the perspective law, the most successful differentiation provides the following allocation: 1) the digital original – a) for the electronic document – a file with the electronic signature; b) for other digital information – a file created by the first of the submitted ones, to which no changes were made, related to its creation (recognized as valid and reliable (deserves the greatest procedural trust); 2) digital duplicate – is a file, created later of the original, but which have been modified only while coping (vs the digital information itself has remained unchanged), (confirmed by calculating the checksum of the original and duplicate, calculated after copying and saved in a separate file; digital duplicate must be recognized as original and used in proof on an equal footing); 3) digital copy – a) a copied file without authentication (without hash sum); b) electronic or paper display of the file content (print screen, printout, etc.) (may be admissible while evidence only in case of impossibility of access to the original / duplicate and confirmation of the authenticity of the display by the other procedural sources of evidence).
