On the Concept of Electronic Evidence and the Criteria for Their Admissibility
The article discusses the development of digital technologies in criminal proceedings and the process of proving in criminal cases in the era of global digitalization. Among the aspects that make this theme relevant are the dynamic development of information technologies, the conservatism and tradition of the criminal process, and the lack of proper regulation on this issue. The author aims at defining the concept of “electronic evidence”, specifying the list criteria for electronic evidence admissibility in Russian and foreign practice, and establishing the specifics of collecting evidence. The research methodology includes general and private methods of cognition: dialectical, formal-logical, comparative-legal, systemic, analysis and synthesis. The article provides an analysis of various perspectives of electronic evidence: electronic evidence is physical evidence; electronic evidence as belonging to other documents; electronic evidence as information in an electronic digital format obtained from a person, object or process and recorded on any material medium. The author adheres to the fourth position, according to which electronic evidence is an independent type of evidence, with its special form, media, mechanism of formation, and method of transformation into evidence. Providing examples of the use of electronic evidence in the Russian and foreign law enforcement practice, the author indicates their advantages and disadvantages and emphasizes that the complex storing, processing and transmitting digital information in an unchanged form determines the criteria for electronic evidence admissibility. Like other types of evidence, electronic one must meet the criteria of reliability, admissibility, and relevance. In addition, digital evidence should be subject to identification, authentication, verifiability, be complete (immutable) and reproducible. In conclusion, the author dwells on the peculiarities of collecting evidence, which should be enshrined in criminal procedural legislation: a) compliance with the general principles of collecting evidence; b) mandatory participation of a specialist; c) no actions causing a change in digital evidence before and during its collection; d) documenting all actions related to the collection, storage, access or transfer of digital evidence; e) responsibility of an official working with electronic evidence for all activities with it; e) ensuring the proper transmission or transportation of digital evidence, as well as appropriate conditions for its storage, depending on the category of information it contains.