According to the legislation of Ukraine, forensic expertise is defined as the expert’s research on the basis of special knowledge, material objects, phenomena and processes that contain information about the circumstances of the case in the proceedings of the bodies of preliminary investigation or court (Article 1 of the Law of Ukraine “On Forensic Expertise” dated 25.02.1994 No. 4038-XII).
Different types of expertise are conducted in the expert institutions of Ukraine classified according to the branches of knowledge as provided in the Instruction on the appointment and conducting of forensic expertise. The corresponding procedure is approved by the order of the Ministry of Justice of Ukraine (dated 08.10.1998, No. 53/5). However, with the development of science, the emergence of new technologies, the changing of social conditions of society, the areas of research of forensic expertise are gradually expanding.
Experts of the Laboratory of Economic Research of Kyiv Scientific Research Institute of Forensic Expertise note the active transition to electronic document management. Thus, instead of the usual documents which we are accustomed to see, electronic documents are getting more popular, which in turn have a completely different nature, characteristics and spatial boundaries.
According to Article 99 of the Code of Criminal Procedure of Ukraine dated 13.04.2012 No. 4651-VI, the document is specifically designed for the purpose of preservation of information, which contains written information, sound, images etc., information that can be used as evidence fact or circumstances that are established during criminal proceedings (including electronic ones).
The Law of Ukraine “On Electronic Documents and Electronic Document Management” dated 22.05.2003 No. 851-IV stipulates that an electronic document (ED) is a document, the information of which recorded in the form of electronic data, including mandatory details of the document. The legal validity of electronic document cannot be denied solely because it has an electronic form.
In order to distinguish an electronic document from the mass of all other electronic documents, it must be personified in a certain way, that is, it has special attributes which can be subsequently identified. The role of personifying attributes of an electronic document is fulfilled by its requisites, which include: 1) the name of the file that is assigned to it intentionally by the creator of information or automatically without his will; 2) the file format, which is determined by the software by which it was designed or saved; 3) the size of the file, which is the amount of memory of the machine carrier that the file occupies; 4) date and time of the file design and editing.
In addition to personalizing the details, the electronic document may contain protective or identity details. For example, one of the details of an electronic document, which is both personal and protective, can be called electronic signature (electronic digital signature). In accordance with the Law of Ukraine “On Electronic Digital Signature” dated 22.05.2003 No.852-IV, the Electronic Digital Signature is understood “the type of electronic signature obtained as a result of cryptographic transformation of a set of electronic data added to this set or is logically combined with it and allows you to confirm its integrity and identify the signer. An electronic digital signature is superimposed with a private key and verified using a public key.”
An electronic document cannot exist without a data carrier. At the same time, it is important to identify the characteristics of the information carrier, including the name of the type, brand, model, individual serial number, etc., information carrier on which the file recorded.
The problem of establishing the authenticity of electronic evidence and ensuring their evidential power has of great importance. Currently, the procedural legislation does not provide for specific criteria for authenticity of electronic evidence.
At the present, in practice, some rules have been developed to ensure the reliability of electronic evidence and to bring them to court:
1) if the electronic document contains graphic or textual information then a paper copy of it is printed, which is drawn up and certified by an authorized person; such a copy shall be attached to the case and shall be investigated as a standard written document;
2) if the transactions which are documented by an electronic document (an electronic document signed with electronic digital signature), and the parties do not recognize the provision of services which are confirmed by this document, then a comprehensive expertise is appointed where the economic expertise is already carried out according to the data on the authenticity of Electronic Digital Signature;
3) if the electronic document is a page on the Internet, then such a page with the condition of the link is printed on paper, it is drawn up and certified as a copy of the web page when the interested person is contacted; a certified copy of the page of the site is attached to the case and is being investigated in the process;
4) if the electronic document carries audio or video information, then as a rule, these files are copied to a separate portable electronic media which is attached to the case and is investigated with the help of special technical means.
Therefore, in order to recognize electronic documents as reliable evidence, it is necessary to strictly follow the rules of procedural legislation as well as standard methods and techniques for collection, evaluation, research and use of electronic evidence. Only in this case the person concerned will be able to count on adoption of such documents by the court, in turn, by the expert-economist.