Evaluation of Digital Evidence in Criminal Proceedings in Croatia with a Focus on Preservation Requirements and Role of Standard Operative Procedures

Abstract

Collection and analysis of digital evidence in criminal proceedings entails risks, such as the contamination of evidence during seizure and/or search of a computer system and the inability to establish its authenticity, which may affect its admissibility and credibility before the courts. For that purpose the requirement on digital evidence preservation is prescribed in the criminal procedure law, which should apply by default to all relevant actors. Analysis of available court decisions and rules of the Criminal Procedure Act confirms that the claims concerning mishandling and/or manipulation of digital evidence do not affect ex lege inadmissibility of such evidence. Such claims would be subject to examination on the credibility (reliability) of evidence before the courts. Any detailed technical procedures and measures to be implemented so as to ensure digital evidence preservation are best suited for regulation by standard operative procedures or perhaps even by sub-legal acts. To that effect, the standard operative procedures discussed in this paper have a proven ability to ensure the common goal of ensuring digital evidence preservation. Adherence to best practices stemming from standardized procedures has shown to be vital for ensuring that investigatory procedures and acquired digital evidence are valid and as such accepted throughout the criminal proceedings.