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28Фам Ньы Хан
Волгоградская академия МВД Российской Федерации
Кафедра уголовного процесса Россия, Волгоград Cavoi89@yandex.ru Pham Nhu Han
Volgograd Academy of the Ministry of Internal Affairs of Russia.
Department of Criminal Procedure Russia, Volgograd
ЭЛЕКТРОННЫЕ ДОКАЗАТЕЛЬСТВА В УГОЛОВНО-ПРОЦЕССУАЛЬНОМ КОДЕКСЕ ВЬЕТНАМА 2015 Г.: НЕКОТОРЫЕ ПРОБЛЕМЫ ОБРАБОТКИ ЭЛЕКТРОННЫХ ДАННЫХ Аннотация: Обработка данных важна для обеспечения целостности исследовательских данных, поскольку они связаны с конфиденциальностью, безопасностью и хранением исследовательских данных. В этой статье мы обсудим некоторые недостатки и ограничения в обработке электронных данных, чтобы проблемы можно было проанализировать и решить в скором времени.
Ключевые слова: электронный данный, доказательство, трудность, уголовное дело, электронное доказательство, недостаток.
E-EVIDENCE IN VIETNAM'S CRIMINAL PROCEDURE CODE 2015: CHALLENGES WHEN HANDLING ELECTRONIC DATA
Annotation: Data handling is important in ensuring the integrity of research data since it addresses concerns related to confidentiality, security, and preservation of research data. Within the scope of this article, we have discussions some of the
УДК 343.1
shortcomings and limitations in the process of handling electronic data so that issues can be analyzed and addressed early on.
Key words: electronic data, evidence, difficulties, criminal cases, electronic evidence, shortcoming.
The Criminal Procedure Code of Vietnam 2015 [1] (hereinafter - CrPC) and the Penal Code of Vietnam 2015 [2], which will enter into force on July 1, 2016 and the debates began in 2014, and media reports showed that throughout the legislative process, healthy disagreements had been expressed between different factions in government and within the National Assembly itself. The CrPC of Vietnam 2015 added electronic data as evidence point 1, article 87, which was also in line with the Penal Code of Vietnam 2015 when it added many new offenses in the field of information technology.
What turned out, however, was a bit surprising: The CrPC of Vietnam 2015 contains far more rights for the accused and their lawyers than many observers believed politically possible.
Evidence in criminal cases not only has a great legal significance to prove criminal acts, but it also has a very important meaning when manipulating to collect, analyze and convert electronic evidence to traditional evidence in order to investigate, prosecute and adjudicate cases that criminals abused advanced scientific and technical achievements as tools and means to commit crimes (high-tech crimes)
[3].
The process of committing high-tech crimes always leaves electronic traces. This is data that is available in the form of digital signals. It is created automatically and objectively in the memory of electronic devices. Consequently, article 99 of the CrPC 2015 establishes: "Electronic data are characters, writings, numbers, images, sounds or similar forms that are created, stored, transmitted or received through the media. Electronically". Similarly, the concept of electronic data was also specified in Section 5, Article 4 of the Electronic Commerce Act of Vietnam 2005[4].
Broadly defined, e-evidence is electronically-stored information on any type of computer device that can be used as evidence in a legal action. Since e-mail can provide especially devastating evidence, the use of e-evidence is increasing. In a survey of 1,100 U.S. companies conducted by the American Management Association and the e-Policy Institute, 14% of respondents said they were ordered by a court or regulator to produce employee e-mail in 2002, which was up from 9% in 2001 [5, c. 98]. Garry Mathiason, whose law firm defends major corporations in employment cases, reported that almost every case his firm handles includes a "smoking e-mail" component. In 2000, e-mail was the most common type of e-evidence, and was dubbed "evidence-mail." In legal actions where evidence-mail or other e-evidence is used, it is as powerful as a smoking gun or DNA evidence, and as hard to deny or refute [6, c. 63].
Just type with the keyword "caught high-tech criminals" in the Google search engine, we received about 19.1 million results in 0.39 seconds. It can be seen that this type of crime has increased in recent years. Especially during the height of the Covid19 pandemic, when most people spend their time implementing "social distancing" to work online from home, this type of crime has taken advantage of fraudulent activity on the Internet. Cyberspace, specifically gambling and fraud, to usurp people's property.
In the current era, the cybersecurity situation has given rise to many new and more complicated developments that threaten information security around the world, especially in the ASEAN region, including Vietnam, with a high rate of Internet users (about 75% of the population, equivalent to 480 million people), is being targeted by cyber-attacks, illegal acts and stealing user data. [7, c.57]
In 2020, the Vietnam Ministry of Public Security reported that more than 400 government agency pages were hacked from more than 5,000 websites and portals. Furthermore, cybercriminals in our country also commit cross-border violations of the law to defraud and acquire property. Therefore, in this day and age, we need to use electronic evidence to combat high-tech crime.
Arccoding article 87 and article 99 the CPrC of Vietnam 2015:
"Article 87. Sources of evidences
1. Evidences are collected and determined from these sources:
a) Exhibits;
b) Statements, presentations;
c) Electronic data;
d) Findings of expert examination and valuation;
dd) Records of legal proceedings, investigation, prosecution, adjudication, sentence enforcement;
e) Results of judicial delegation and other international cooperations;
g) Other documents and items...."
"Article 99. Electronic data
1. Electronic data is composed of signals, letters, numbers, images, sound or similar elements created, stored and transmitted or acquired through electronic media.
2. Electronic data is collected through electronic media, computer networks, telecommunication networks, transmission lines and other electronic sources.
3. Electronic data constitutes evident values according to the methods of its creation, storage or transmission; the methods for assurance and maintenance of the entirety of electronic data; and the methods for identifying creators and other proper factors."
Based on the source of evidence, electronic evience classified as 2 types of evidence:
- User-generated electronic data: they are documents, data generated by human behavior and stored in electronic memory.
- Electronic data generated automatically by a computer: This is the result after a computer program processes the input data through a certain algorithm.
Electronic data has the following characteristics:
First, it is a non-conventional sort of evidence, now no longer a component or occasion as formerly thought. Accordingly, digital information is thought as characters in digitized form. They're created automatically, objectively, exist in digital means, laptop networks, telecommunications networks, on transmission lines. And digital reassessments inside the procedure of processing will produce information together with numbers, letters, sounds, images, ...
Second, electronic data is created in our on-line world and has no borders or territories. Therefore, the collection, exam and assessment if you want to convert them into conventional evidence, used as a foundation to show the crime, is likewise unique.
However to be admissible as proof, the law requires that it conform to certain rules and restrictions. In the past decade the explosion in the use of the internet in various spheres of human endeavour has meant that evidence has to be collected from computers and various electronic devices. It is estimated that 70% of paper business records are wholly computer generated, and that 95% of business documents are produced on word-processors. Approximately 30% of the data stored on computers is never reduced to printed form. This means that 30% of potentially relevant evidence can only be gathered from information systems.[8, c. 244]
There is extra to this explosive increase than just "documents." Additional styles of digital statistics originate from:
- Internet-based electronic commerce, online banking, and stock trading,
- Corporate use and storage of phone mail messages and electronic logs Personal organizers,
- Wireless devices such as cell phones, pagers with contacts and task list storage, evidence from SIM cards, voice mails, data from converged networks and evidence from global positioning devices,
- Corporate use and storage of graphic images, audio, and video.
One of the most important sources of evidence in high-tech crimes cases is the evidence seized at the place where the crime occurred, bearing a criminal trace such
as: "cookies", "URLs", web servers logs, Email logs ... (these are computer generated information); or may also be man-made electronic information stored in computers or other electronic devices, such as documents, tables, images, information stored in electronic signals.
Most people who use high technology to commit crimes have a high level of legal awareness and knowledge, and when committing crimes, there are sophisticated tricks to hide criminal information, When they detect a risk of disclosure, they quickly remove traces to denounce (such as deleting related data; demolishing Web sites), so collecting, restoring and transmitting electronic evidence into the traditional evidence to prove the crimes of the subjects is extremely important, it determines the success or failure of a specialized case.
What is e-evidence?
So, what is electronic evidence? "Electronic evidence is evidence stored in the form of electronic signals in computers or in devices with a set of digital memory involved in criminal cases". According to the International Criminal Police Organization (Interpol), electronic evidence is investigative information and data that is stored or transmitted by a computer, computer network or others technical electronic device. The establishment, seizure as well as restoration of electronic evidence must be conducted urgently but prudently; require meticulous and high accuracy. Especially when we do not have the provisions on electronic evidence in the Criminal Procedure Code as well as no scientific conclusions on electronic evidence, methods, collection principles and transformation of evidence in these cases. Although the Criminal Code has provided for 6 crimes related to high technology crimes, there are no specific guidelines about the way to handle these crimes, many concepts proposed are relatively vague and not clearly quantified. [9, c. 69].
The collection of electronic evidence in criminal proceedings as mentioned above does not have specific and clear regulations; so, to proceed this activity smoothly and achieve the desired effect; in our opinion, besides thoroughly observing
the principles in collecting evidence in general, when conducting electronic evidence collection, it is necessary to thoroughly grasp the following specific issues:
First, do not change the information stored in computers or digital devices.
Second, when having access to the original information stored in computers or digital devices, the access person must be trained experts to perform the collection and recovery of electronic evidence.
Third, the data recording (copy) must be done according to the right process; use internationally recognized and verifiable equipment and software. The integrity of electronic data stored in the machine must be protected.
Fourth, the objectivity, status quo and veracity of the evidence must be proved in court. Must prove the process of data recovery, find evidence; when necessary, the process may be repeated to produce results similar to those presented at court.
However, as mentioned above, most of the people who use high technology to commit crimes have knowledge of technology and are always aware that their jobs are breaking the law, so they are very attentive to destroy evidence proving their offenses, so when conducting investigations of cases using high technology to commit crimes, the issue of recovering electronic evidence is an important and necessary activity.
Some of the shortcomings and limitations:
In fact, we have some of the shortcomings and limitations in the process of handling cases related to criminal evidence are electronic data:
First, electronic evidence has different characteristics from traditional evidence, however, there are currently no specific implementation guidelines on the confiscation and recovery process for this type of evidence to ensure data integrity, preserving the value of data evidence.
Second, according to article 206 the CrPC of Vietnam 2015, the evaluation of electronic data is not required, which requires expert opinion depending on the institution conducting the process, while related issues remain to electronic data that cannot be determined accurately with the naked eye.
Third, currently the CrPC of Vietnam 2015 only stipulates provisions regarding "collection of electronic devices and electronic data" (Article 107), while the examination and evaluation of electronic evidence does not have its own rules but is regulated in accordance with general rules regarding the examination and assessment of evidence as referred to in Article 108 of the CrPC of Vietnam 2015.
Fourth, electronic evidence can experience data loss and transformation; The problem of detecting, preserving, evaluating and using this type of evidence source also encounters some difficulties because depending on the time, setup process, storage and when detected, criminals can be quickly removed and modified to destroy electronic data, causing difficulties in collecting and retrieving evidence.[10]
Gathering evidence from social media sites can be difficult for several reasons. Social media is constantly evolving and users can easily update and delete material that can be evidence in a case, although once users are aware of the ongoing investigation, they are required to keep social media evidence as if it were any other type of evidence.
Some of the issues that should be considered to ensure the integrity of the data being managed include: The type of data processed and the associated impact on the environment (especially if on toxic media); The type of media containing the data and their storage capacity, management and storage requirements, reliability, longevity (in the case of degradable media), recovery effectiveness, and ease of updating to newer media; Data processing responsibilities/privileges, i.e. who can manage which part of the data, at what time of the project, for what purpose, etc; Data processing procedures that describe how long data should be stored and when, how and who should process data for storage, sharing, archiving, retrieval, and disposal purposes.
Fifth, the restoration of electronic evidence on computers and digital electronic devices is the act of restoring the working status of computers and digital electronic devices when the objects being used are seized; is the process of finding data that has been stored during use on the computer, including data deleted from the computer ...
it is also the process of recovering, analyzing, searching and collecting among the data related to the problem of proving a crime.
If the data are recorded electronically, the data should be regularly backed up on disc; a hard copy should be made of particularly important data; relevant software must be retained to ensure future access, and special attention should be given to guaranteeing the security of electronic data. [11]
In order to recover electronic evidence, it is first necessary to fully seize physical evidences as tools and means for committing crimes; the collected evidences must be well preserved for the restoration process. The recovery of electronic evidence in high technology crimes is extremely important, because people who commit this type of crime often use high technology to eliminate traces of crime and hide criminals. In order for this work to be achieved, it is necessary to have information technology and telecommunications experts involved in the recovery process [12, с. 49]. And in order for these evidences to be validated in criminal cases where criminal offenders use high technology to commit crimes, strict regulations of the arrest and recovery process are required for this kind of evidence.
Thus, providing electronically derived proof right into a shape that a courtroom docket can handle, normally a "print-out" way a positive diploma of processing may be required. This consequently requires an excessive diploma of technical information of the character of digital proof through all events and similarly requires an intensive and disciplined method to proof amassing and presentation at a part of investigators, auditors, pc managers and lawyers.
Список литературы:
1. Уголовно-процессуальный кодекс Социалистической Республики Вьетнам №101/2015/QH13 27 ноября 2015 г. [Электронный ресурс] // URL: https://thuvienphapluat.vn/van-ban/Trach-nhiem-hinh-su/Bo-luat-to-tung-hinh-su-2015-296884.aspx (дата обращения: 04.10.2021)
2. Уголовный кодекс Социалистической Республики Вьетнам № 100/2015/QH13, 27 ноября 2015 года [Электронный ресурс] //URL: https: //thuvienphapluat.vn/van-ban/Trach-nhiem-hinh-su/Bo-luat-hinh- su-2015-296661.aspx. (дата обращения: 30.09.2021)
3. Binh luán vê dû lieu dien tù trong Bô luât Tô tung Hinh su näm 2015, [Электронный ресурс] // URL: http://hinhsu.luatviet.co/binh-luan-ve-du-lieu-dien-tu-trong-bo-luat-to-tung-hinh-su-nam-2015/n20161028120823386.html.(дата обращения: 02.10.2021)
4. Законе об электронных сделках Социалистической Республики Вьетнам №51/2005/QH11, 29 ноября 2005 года. [Электронный ресурс] // URL: https://thuvienphapluat.vn/van-ban/Thuong-mai/Luat-Giao-dich-dien-tu-2005-51-2005-QH11-6922.aspx. (дата обращения: 30.08.2021)
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6. Varchaver, N., "The perils of e-mail", Fortune, 17 February, 2003, p.63./ Варчар, H., «Опасности электронной почты», Fortune, 17 февраля 2003, с.63.
7. Фан Ван Чань, Источником доказательств являются электронные данные в соответствии с положениями Уголовно-процессуального кодекса 2015 г., Журнал демократии и права, № 8/2016, с.57.
8. Марселла, Альберт Дж., Младший, Кибер-криминалистика: Полевое руководство по сбору, изучению и сохранению доказательств компьютерных преступлений., Auerbach Publishers, Incorporated, 2002. с.244.
9. Чан Ван Хоа, Проблемы электронных следов и доказательств в Уголовно-процессуальном кодексе, Журнал науки и стратегии, выпуск 12 2014 г., c.69.
10. Thu thâp bào quán chúng cú là dù lieu dien tù và nhùng khó khän vuóng mäc. [Электронный ресурс] // URL: http://vkscantho.vn/vkscantho/index.php/news/Trao-doi-nghiep-vu/Thu-thap-bao-
quan-chung-cu-la-du-Heu-dien-tu-va-nhung-kho-khan-vuong-mac-3464/ (Дата
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11. Office of Research Integrity, "Data Management Guidelines Issued by British Medical Research Council", September 2001, Vol. 9, No. 4. [Электронный ресурс] // URL: https://ori.hhs.gov/images/ddblock/vol9_no4.pdf. (Дата обращения: 06.10.2021).
12. Чан Куанг Тьеп, Институт доказывания в уголовно-процессуальном законодательстве Вьетнама. Национальное политическое издательство, Ханой, 2004 г., с.49.
