СТАН ВПРОВАДЖЕННЯ КОНВЕНЦІЇ ПРО КІБЕРЗЛОЧИННІСТЬ У КРАЇНАХ СХІДНОЇ ЄВРОПИ

Abstract

The monograph analyzes the status of reform of criminal procedure legislation of Ukraine and other Eastern European countries to implement the procedural provisions of the International Convention on Cybercrime in order to determine the procedural powers of pre-trial investigation authorities to collect electronic evidence. The relevance of the research topic is substantiated by statistical data on the rapid growth of the number of criminal offenses, the method of committing which is inextricably linked with the use of computers and computer data processing. The monograph consists a systematic analysis of the procedural powers of pre-trial investigation bodies which are provided for in the Convention on Cybercrime and aimed at increasing the effectiveness of pre-trial investigation bodies in documenting criminal activity, taking into account the specific form of factual data that need to be collected as evidence in these investigations. It is stated that the need to supplement the procedural powers of pre-trial investigation bodies in the investigation of computer crimes is determined by such factors as: technological ability to change, distort, modify and destroy electronic data quickly after using them in computer crimes; technological possibility of placing such electronic data outside the territorial jurisdictions of individual states and outside the location of continents, etc. It has been established that in order to ensure the effectiveness of pre-trial investigations into computer crimes, the powers of the prosecution need to be supplemented by the following procedural possibilities, provided for in the Cybercrime Convention: the possibility for the competent authority to issue an order for the urgent retention of certain computer data, including data on the movement of information stored by the computer system, in particular when there are grounds to believe that such computer data is particularly vulnerable to loss or modification; the obligation of the person who controls the relevant computer data to kept and maintain the integrity of such computer data for a certain period of time which is necessary to obtain permission from the competent authority to disclose such data; the obligation of the person who must keep such computer data on the order of the competent authority, to maintain the confidentiality of the fact of such procedures for a certain period; ensuring the possibility of urgent storage of data on the movement of information, regardless of the number of service providers involved in the transmission of such information; ensuring the possibility of urgent disclosure of information on the movement of information, to the competent authority. Such amount of information is sufficient to identify service providers and the route of the information`s transmission; search and seizure of computer data, etc. A systematic analysis of the criminal procedure legislation of Eastern European countries has shown that Ukraine’s neighbors have also not fully signed and ratified the procedural provisions of the Convention on Cybercrime. Only Hungary, Romania and the Republic of Bulgaria have secured the most effective powers of the analyzed states. In particular, the criminal procedure law of these states provides for such powers of the prosecution as: issuing a warrant for the urgent preservation of certain e-data; the person’s responsibility to maintain the integrity of stored e-data; seizure of data, computer system, part or medium; copying and saving a copy of such e-data; preserving the integrity of stored e-data; extracting e-data from a computer system, etc.