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Vladimir Golubev
Crime-reserarch.orgThe computer information as the proof on criminal case
Today it is difficult to imagine effective activity of the enterprise, organization, establishment or firm without modern information technologies use. The society becomes more dependent on computer systems work, which gives the certain kinds of services and carry out the different functions. The diversified information is stored and processed in the COMPUTER (from the personal data containing the addresses, telephone numbers, the schedule, up to data which can represent a state or a trade secret).
Information technologies gave a push not only to development of a society, but also stimulated occurrence of a new kind of means on an establishment of circumstances - "electronic proofs". Electronic proofs as the computer information which can be received on a place of incident from the COMPUTER, computer system or network today get a special interest for crimes investigation. It is difficult to overestimate the value of computer criminalities information for disclosing and investigations of crimes against the property and in sphere of economic activities. It is obvious even from superficial enumeration of the basic kinds of data, which subjects of managing write down, store, process and also exchange with other juridical and physical persons with computer technologies use.
For a crime disclosing, it is enough to have the most general data on that computer information which suspected persons have. The more important and a complex problem is a withdrawal of such information and its consideration from the point of view of proofs on criminal case.
With reference to process of substantiation, the computer information can be defined as the fact sheet in text, graphic or other kinds which exist in an electronic kind, are saved on corresponding carriers in the form, accessible to recognition of the Computer or the person, or transmitted on telecommunication channels and on the basis of which, in the order, determined by the law, the circumstances important for the correct sanction of an affair are established. The system of the account and document circulation of modern economic subjects is completely computerized, therefore the investigator should know precisely, what fact data he can receive with the help of the Computer, what are their evidentiary value and ways of introduction in criminal case as proofs. The sources of the computer information can be machine listing or the store on magnetic (optical) disks, other carriers. The information can be contained in the operative memory of a computer (it is necessary to be especially careful working on it, as it is volatile) or in a constant memory, and also in local and global networks. Till now the legislator has not expressed the unequivocal attitude to the information stored in a computer memory, as to the proof.
Investigators at own risk at substantiation use the data received with the help of computer techniques. The characteristic attribute of criminal-remedial substantiation consists in collecting, check and a rating of proofs with a view of an establishment of circumstances on criminal case. According to Clause 87 of Russian Criminal-Judicial Code (CJC) it is stipulated the check of proofs which is made by the ascertainers, the inspector, the public prosecutor, court by their comparison to other proofs which are taking place in criminal case, and also an establishment of their sources; receptions of other proofs confirming or denying the checked proof [1]. We believe, that in the Ukrainian criminal-judicial legislation it is has ripened the necessity to legalize uniform understanding and the general methods of the computer information use as the proof on criminal case.
According to item 65 CJC of Ukraine the proofs on criminal case are all fact sheet on the basis of which in the order determined by the law, the body of inquiry, the investigator, the court establish the presence or absence of socially dangerous act, guilt of the person who have made this act, and other circumstances important for the correct sanction of an affair [2].
Undoubtedly, the data used by juridical persons and citizens at realization of free enterprise and other activity (including the data stored, processable, passed with the help of computer techniques), depending on circumstances of criminal case can matter for an establishment of the fact of a crime fulfillment and guilt of concrete persons, i.e. they meet the requirements of referability. These data are especially important at investigation of economic crimes. Such data are the fact sheet. It is not only the facts, but also data on the facts. For example, data about the sum of the charged wages for the workers of the enterprise, about the date and the sum of transfer money resources on the bank account of the contractor and the other information.
Fact sheet can be used as proofs only in the event that they are received from sources precisely established in the law which list is given in items 65 CJC of Ukraine. According to the list data on the certain facts have been fixed. In overwhelming majority the fact sheet, can be than other, as the document. In criminal trial the documents are various acts in which are stated and certified by the enterprises, establishments, the organizations, officials and citizens those or other circumstances and the facts important for criminal case. Earlier, it was accepted to consider as documents only material subjects, and in the majority, there were written acts on the paper carriers. With development and perfection of technique the new means of fixing, transfer and storage of the information have appeared. Necessarily they should be involved in criminal trial; therefore documents of a photo, the cinema, audio and video data are recognized (but they should be transferred to a paper data carrier, for example, to an audio record the obligatory application of its stenogram is required).
At the same time such restrictions for documents do not follow at all from the law as in item 83 CJC of Ukraine devoted to documents as a source of proofs, there are no instructions on the concrete carrier and a way of circumstances and the facts fixing. It allows putting the computer information in a line of documents used in process substantiation, as it has all their attributes. We list them:
1) The document should proceed from establishments, the enterprises, the organizations, officials or citizens; authors can be both official, and private persons that are actual for the computer information stored in Personal Computer, taking place in various establishments and the enterprises, and also in citizens personal using. For a characterized kind of documents the observance of the certain attributes, properties is less essential, though there are other, important conditions for job (for example, the passwords, the certain programs for inclusion in a bank network and other ways of an input and an output from information space and saving of the data), describing competence and professionalism of the person working with an electronic news media;
2) The document is the proof if data on the facts, stated in it, matter for criminal case, if with their help the presence or absence of the circumstances subject for the substantiation can be fixed (about this characteristic of the computer information the question was above, now only we shall remind, that the most important for economic crimes substantiation are the reference and the identity data, descriptions of various events, processes and persons, the data on business operations, clients and partners, statistical, registration, accounting and other data which many firms and citizens keep in banks of the computer information);
3) Various ways of transfer of the information and various material objects can be used for a statement of data on circumstances and the facts in the document. Such data in the COMPUTER are texts, illustrations, tables, programs and the initial data for their performance, results of realization of programs, etc. All of them can be fixed in the alphabetic, digital or code (ciphered) expression. For convenience of job with written down in memory of a computer data they are placed in files.
The file is the called area on a disk or the other machine carrier, in which texts of programs, documents, the initial data ready to performance of the program, pictures, etc can be stored.
In a file the texts of documents, codes of programs, figures and many other things can be saved. Each file carries a name, which will consist of two parts: a name and expansions. In one operational systems (MS-DOS) a file's name can consist of 1 up to 8 symbols, in others (Windows 98), the file's name can have up to 256 symbols. Expansion (type) of a file begins with a point, behind which can be from 1 up to 3 symbols. The concrete type of expansion specifies a kind of the information saved in a file. For example, if the file contains the text information it as a rule has expansion .ÒÕÒ, .DOC.
There is a severe data's hierarchy of the information files organization in the Computer: the elementary data, recording, and a file. At job with the computer data carriers inspectors should face with several kinds of data carriers more often: the winchester (hard disk), a diskette (floppy disk), stores on a magnetic tape (streamers), stores on compact disks;
4) In the document the information on those or other circumstances or the facts represent the description of these circumstances and the facts made by persons from whom the document proceeds. It is a difference of the document from material evidence where data on the facts are formed not as a result of the description of these facts in summary direct leaving on material object of traces of this or that event, actions. Undoubtedly, computer carriers can be also material evidence if the question is the changes brought in the programs or the maintenance of files with criminal intention. Such it is possible, in particular, on affairs about crimes in sphere of computers, systems and computer networks use. The responsibility for such offenses is entered in Ukraine since September 1, 2001 [3]. As a material evidence can be only a subject which is capable to perceive influence of other subjects as the certain traces and itself to leave traces in an environment, as material evidences it is possible to consider data carriers - a diskette or the winchester, and also a computer if it or its data carriers served as instruments of a crime, or have saved on itself traces of a crime, or were objects of criminal acts and also if they can serve as means to detection of a crime, to an establishment of actual circumstances of an affair, revealing guilty, i.e. according to item 78 CJC of Ukraine;
5) The document gets value of the proof if it meets the requirements of an admissibility, i.e. is received with observance of the certain remedial form according to item 83 CJC of Ukraine. In materials of criminal case the data specifying how the document has got in business should contain. It can be copies of the inspector searches, body of inquiry or court and the covering letter, the report of investigatory action during which the document is received. If the concrete person submits the document, by the inspector properties of service documents or the data on the citizen from which the document proceeds should be established and fixed. The person, who has presented the document, is interrogated under the data stated in him, or circumstances of detection of the document.
In the conclusion it is necessary to emphasize, that the investigatory actions connected to survey and withdrawal of the computer information and techniques, the decision of such special problems, as establishment of presence and maintenance of completeness and adequacy of the information, which is withdrawn demand. In view of absence for today of special techniques and techniques for research of the computer information on a place of carrying out of investigatory actions, such researches are recommended to be spent in laboratory conditions. In this case computers should be subject to withdrawal with the purpose of the computer information saving in a constant kind and maintenance of its safety during transportation of the withdrawn computer means.
1. The Criminal-Judicial Code of the Russian Federation. "Examinations", Ì., 2002.
2. The Criminal-Judicial Code of Ukraine: Scientific - practical comment Ê.: Jurincom,1995. -639 p.
3. The Criminal Code of Ukraine (accepted seventh session of the Verhovna Rada of Ukraine on April, 5, 2001). -Ê., the Official bulletin of Ukraine, 2001. -P.105-106.