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28УДК 343
Фам 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 ДАННЫЕ И ЭЛЕКТРОННЫЕ ДОКАЗАТЕЛЬСТВА В УГОЛОВНО-ПРОЦЕССУАЛЬНОМ КОДЕКСЕ ВЬЕТНАМА 2015 ГОДА Аннотация: Уголовно-процессуальный кодекс Вьетнама 2015 года (УПК) имеет большое значение для проведения расследования, судебного преследования и вынесения судебных решений по уголовным делам. Одним из новых и прогрессивных норм, эффективно отвечающих требованиям борьбы с преступностью в новой ситуации, является положение об источниках доказательств - электронных данных (электронных доказательствах). Ключевые слова: Уголовно-процессуальный кодекс, электронные данные, электронные доказательства, источник доказательства, уголовный дело.
ELECTRONIC DATA AND ELECTRONIC EVIDENCE IN VIETNAM'S CRIMINAL PROCEDURE CODE 2015 Annotation: Vietnam's 2015 Criminal Procedure Code (CPC) is of great importance for the investigation, prosecution, and adjudication of criminal cases. One of the new and progressive rules that effectively meet the requirements of combating crime in the new situation is the provision of the sources of evidence - electronic data (electronic evidence).
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Key words: Criminal procedure code, electronic data, electronic evidence, source of evidence, criminal case.
1. Definition and overall of electronic data
1.1. Definition
Clause 1, Article 87 of 2015 Criminal Procedure Code (CPC) specifies 7 sources of evidence, including "electronic data". Hence, with electronic data, competent procedural authorities are able to gain evidences in order to prove whether there is an offence, who committed the offence and address other issues relating to the case.
According to Article 99 CPC, electronic data is defined as signs, letters, numbers, images, sound or similar forms which are created, stored, transferred or received by electronic means. Electronic data is collected by such electronic means as Internet, telecommunication network, transmission lines and other electronic sources. However, we consider electronic data as signs, letters, numbers, images, sound or similar forms that people can recognize through electronic devices and means, appropriate softwares because it exists in digital form in byte, bits, electromagnetic waves, electronic particles,...which in its natural state we're unable to see, to hear or to recognize in devices that contain it. For instance: a memory card, visually we cannot see images, sounds, character.but when inserting it into the computer and using an appropropriate software, we can see and recognize images, sounds, character, ... Or if using an unappropriate software with the same computer and memory card, we cannot see or recognize sounds, images. [1].
Accordingly, in term of criminal proceedings, electronic data is one of sources of evidence specified in CPC in its natural state, in which electronic data stored in electronic devices and means or transferred, received by electronic devices and means, by using an appropriate (compatible) software, it manifests itself as signs, letters, numbers, images, sounds or similar forms which can be recognized by human's senses.
1.2. Attribute of electronic data
- Electronic data don't exist independenly but attach at least to one electronic device or means because by so, it is generated, stored, transferred and received. Digital
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memory of such electronic devices and means always change and incessantly develop as Smart Cards, Smart Media, GPS devices, bar code readers, computers, scanners, printers, mobile phones, cameras, photocopiers, relay sattellite machines, HD storage devices, USB, removable hard drive, floppy disks, CD, DVD, VCD...
- Electronic data can be edited and supplemented. This happens after generating, people can, by using devices, electronic means, software, interfere in the original data in order to change or increase the electronic data from the original, which generates new electronic data containing messages different from the original messages of electronic data when it was first created.
- Electronic data can be deleted. This is an attribute coming out after being generated, electronic data can be deleted. This means that before being deleted, electronic data, through devices, electronic means and software, manifest itself into messages containing information in the form of signs, letters, numbers, images, sounds or similar ones probably recognized by people. However, after being deleted, in spite of using the same devicecs, electronic means or software, electronic data no longer convey messages containing this information.
- Electronic data can be restored. This might happen after electronic data is deleted, experts can restore the original data by using specilized softwares or certain electronic means, which means to bring electronic data back to the state in which, through devices, electronic means and software, it manifests itself into messages containing information in the form of signs, letters, numbers, images, sounds or similar ones probably recognized by people.
- Electronic data can be copied from original one to many other data with the same attribute and content. Through devices, electronic means with the same attribute and standards as software, electronic data copies also manifest themselves into the same messages containing information in the form of signs, letters, numbers, images, sounds or similar ones probably recognized by people.
- It is devices, electronic means and appropriate (compatible) softwares that electronic data can be transformed into information in the form of signs, letters,
numbers, images, sounds or similar ones recognized by human's senses. Without it, people cannot recognize messages shown by this information.
- Electronic data can be transmitted from one electronic device or means to another electronic device or means in a short time, without wires, in far distance.
1.3. Classification of electronic data
It is the method that electronic data can be classified into the following categories:
- Electronic data generated automatically by computer, such as: "cookies", "URL", E-mail logs, web server logs, IP, information of account access, website access history, ... They are objective, independent from victim's consciousness or others using electronic device and means but being not an adminstrator who has the ability to adjust it.
- Electronic data generated by criminals or victims, such as: documents, spreadsheets, images, information. shown in electronic messages such as emails, chatroom, downloaded and uploaded documents in the Internet. These data can bring inherent messages and also can bring untrue messages because of being editted, deleted or added some information.
- Electronic data generated by agencies or competent procedural authorities, such as: data in electronic devices or means is collected while carrying out special enquiry measures, which records the experimental investigation, crime scene investigation, interrogation, .
2. Relation between electronic evidence and electronic data
According to Article 86 CPC, the evidences are factual things collected in accordance with the order, procedure regulated in the Criminal Code, are used to determined whether there is an offense or not, who committed the crime and other circumstances in order to solve the case. "Factual things" real information.
CPC does not mention "electronic evidence" but in real "life" of legal science, there are some scientists using this term and we think that the term "electronic evidence" can be used to indicate evidences regulated in Article 86 CPC. They directly relate to or are directly generated from the evidence source of electronic data, and so
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"electronic evidence" is as objective, relevant and legal as evidence is. On the other hand, "electronic evidence" is real information that competent procedural authorities obtaining from the source of electronic data, collecting in accordance with the order and procedure regulated by the CPC, and is used to determine whether there is an offense or not, who committed the crime and other circumstances in order to solve the case[2].
Electronic evidence can only be extracted from the source of electronic data. Therefore, while dealing with the case, competent procudural authorities can look for electronic evidences at nowhere but the electronic data and attach to electronic devices or means and certain compatible softwares. In other words, in order to gather electronic evidence, competent procedural authorities need 2 factors:
+ Electronic data;
+ Electronic devices or means and appropriate (compatible) softwares.
Electronic data is the source of electronic evidence but not all electronic data can help to collect electronic evidences because it can be only extracted if the electronic data have 3 attributes of evidence, which are objectiveness, relevance and legality [3].
In some cases, in spite of the electronic data, electronic evidence cannot be found because it doesn't have those 3 attributes. For example:
+ Generated electronic data is subjective of an actor and not true to the nature of the case for the purpose of cheating competent procedural authorities.
+ Electronic data that is stored and transmitted is not inherent with the original. As a result, messages containing information in the form of signs, letters, numbers, images, sounds or similar ones cannot reflect the truth of the case.
+ Electronic data don't relate to or contain messages relating to the case.
+ Electronic data isn't detected, recorded, obtained, preserved and extracted in accordance with the order and procedure regulated by the CPC.
Although electronic data is detected, recorded, obtained, preserved and extracted in accordance with the order and procedure regulated by the CPC, but use electronic devices, means and software which is of poor quality, and not adherent to the order and procedure regulated by the CPC, messages containing information in the form of signs,
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letters, numbers, images, sounds or similar ones cannot be extracted, hence no electronic evidences are generated [4].
3. The interaction of electronic data and other sources of evidence
Apart from electronic data, the CPC classifies 06 other sources of evidence, such as: exhibit; testimony, statement; conclusions of crime scene investigation, property valuation, reports on prosecution, investigation, trial, judgment execution; results of judicial mandate and other international cooperation; other documents and objects. Electronic evidences and other sources of evidence don't exist independently but have a close relation because they generate evidences whichs help to properly solve the case. As for the collecting evidences to prove the crime and bring perpetrators to the light, electronic data and other sources of evidence always interact with each other as followed:
3.1. Some other sources of evidence always come out with electronic data
When being looked for, detected, obtained, preserved, utilized in adherence to the order and procedures regulated in the CPC, electronic data always come out with other sources of evidence such as:
+ As being a source of electronic evidence, electronic data ought to be contained or transmitted, delivered, received by electronic devices and means. At the same time, these electronic devices and means inevitably become evidences of the case.
+ In order to seize, inspect, review and assess an electronic data, competent procedural authorities must make records of each activity. As a result, the electronic evidence will go abreast with electronic data.
3.2. Electronic data might be a means of transmission, reflecting other sources of evidence
Testimonies, statements of arrestee, victim, witness. in many cases, are recorded with sound and images, or that recording a video and taking photographs of crime scene investigation and experiment, which means that all those things are stored in electronic data.
In order to have exact and objective crime scene conclusions, surveyors may carry out crime scene experiment, compare samples, and carry out other activities using
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electronic devices and means, leading to generate electronic data. The more modern and convenient the electronic devices and means are, the more objective and exact the results are.
There are some cases that results of judicial mandate and other international cooperation among countries, judicial agencies are implemented through electronic devices and means in order to reduce procedural costs and to save time, so it is electronic data that contain the results.
3.3. By electronic data, it is possible to find, detect, obtain and reinforce other sources of evidence and vice versa
During addressing a crime, competent procedural authorities often use electronic data to detect other sources of evidence and vice versa. For example: A suspect breaks into a victim's house, rapes and then hides away; the investigation agency extracts neighbor's camera to identify the suspect, then makes records of testimony of all suspects (This is a case that uses electronic data to detect other sources of evidence).
During the testimony, the suspect states that: he used a junk phone sim card to call and tell the victim where to meet, then forced and took the victim to his house to commit the rape while recording by phone. Based on these testimonies, the investigation agencies extracts cameras along the roads that he takes the victim to his house, draws a list of phone numbers upon victim and suspect's phones, collects clips recorded in suspect's phone to prove the crime (This is a case that uses other sources of evidence to detect electronic data) [5].
On the other hand, electronic evidence can probably reinforce other evidences and vice versa, other evidences can probably reinforce electronic evidence.
4. Suggestions to improve the utilization of electronic data, electronic evidence on solving the case
- Soon digitize common documents, criminal archives, information of Vietnamese citizens, stateless people, foreigners on entry and exit, investigation conclusions, indictments, judgements,... then establish an electronic data warehouse to facilitate the investigation, prosecution and trial of criminal cases[6].
- Organize training courses for competent procedural officials to improve their knowledge on electronic data and electronic evidences. For example:
+ Put specialized knowledge of electronic data and electronic evidence into the education program of criminal justice training facilities.
+ Organize training courses for competent procedural officials who haven't yet been trained on electronic data and electronic evidence.
- Provide infrastructure for competent procedural agencies, including electronic means, electronic devices, reputable softwares to facilitate the finding, detecting, recording, obtaining, preserving, reinforcing, assessing, utilizing electronic data, electronic evidences in solving the case, as well as to consolidate other evidences through electronic evidences and vice versa.
- Establish a judicial support and adjudicating team having professional knowledge and ability to use electronic equipments, electronic means, softwares to detect non-traditional traces, electronic traces,... in order to collect, preserve, verify, utilize its best the source of electronic evidence in solving the case.
- Complete other legal provisions relating to administrate, extract, utilize electronic data from electronic devices and means and softwares, to ensure the interaction, objectiveness, legalization of electronic data when it is restored after being deleted; detect, preserve, do backup electronic data before verification; seize electronic data transmitting in space.
- Complete provisions of the CPC on finding, detecting, recording, obtaining, preserving, assessing, using electronic evidence because this type of evidence has different characteristics from traditional evidence [7].
- Increase international cooperation, information sharing, understanding of electronic data, electronic evidence during investigation, prosecution, trials of cases; apply criminal scientific and technical achievements, especially digital technology, electronic engineering, artificial intelligence in detecting va fighting against criminals.
- Utilize electronic devices and means to facilitate criminal judicial assisstance and international cooperation in investigating, prosecuting, judging cases which have many criminals in different countries, transnational crimes, cyber-crime, high-tech
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crime,...in order to reduce costs of prosecution and to save time of solving cases but still gain expected effect.
Список литературы:
1. Bo luat TO tung hinh su nuoc Cong hoa xa hoi chu nghia Viet Nam, sO: 101/2015/QH13 ngay 27.11.2015 /Уголовно-процессуальный кодекс Социалистической Республики Вьетнам №101/2015/QH13 27 ноября 2015 года.
2. Trin Quang Tiep, Ch6 dinh chung cu trong Luat tO tung hinh su Viet Nam. NXB Chinh tri Quoc gia, Ha Noi, 2004, tr.49. / Чан Куанг Тьеп. Институт доказывания в уголовно-процессуальном законодательстве Вьетнама. Национальное политическое издательство, Ханой, 2004 г., с.49.
3. Giao trinh Luat tO tung hinh su Viet Nam, Nguyen Ngoc Chi, Khoa Luat, Dai hoc Quoc gia Ha Noi. NXB Dai hoc Quoc gia, Ha Noi, 2001, tr.161. / Уголовный процесс: учебник, Нгуен Нгок Чи, юридический факультет Ханойского национального университета. Издательство Национального университета, Ханой, 2001 г., с.161.
4. Thong diep du lieu dien tu trong tO tung dan su, tO tung hanh chinh la gi? [Электронный ресурс] // URL: https://nganhangphapluat.thukyluat.vn/tu-van-phap-luat/thu-tuc-to-tung/thong-diep-du-lieu-dien-tu-trong-to-tung-dan-su-to-tung-hanh-chinh-238143.
5. Binh luan ve du lieu dien tu trong Bo luat To tung Hinh su nam 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.
6. Nhung diem moi ve chung minh va chung cu theo Bo luat To tung hinh su nam 2015. [Электронный ресурс] // URL: http: //pup .edu.vn/index .php/news/Nghien-cuu-Trao-doi/Nhung-diem-moi-ve-chung-minh-va-chung-cu-theo-Bo-luat-To-tung-hinh- su-nam-2015-1389. html.
7. Le Cam, V8 he thOng cac quy pham trong 4 chuong diu tien cua Du thao Bo luat tO tung hinh su, Tap chi Toa an nhan dan, 2018, SO. 6, Tr. 3-5. / Ле Кам, О системе положений первых 4 глав проекта новой редакции Уголовно -
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процессуального кодекса (Общая часть), Журнал Народного суда, 2018 г., вып. 6, с.3-5.
