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Науково-практична Інтернет-конференція 27.02.2014 - Секція №5
"The application of computer science and investigative procedures for a legal purpose involving the analysis of digital evidence after proper search, chain of custody, validation with mathematics, use of validated tools, repeatability, reporting, and possible expert presentation" [1]. This is the definition of digital forensics. At this point, you should answer the question, what is the digital evidence? "Digital evidence includes information on computers, audio files, video recordings, and digital images. This evidence is essential in computer and Internet crimes, but is also valuable for facial recognition, crime scene photos, and surveillance tapes" [2]. Even with these two definitions we can conclude that digital forensics encompasses much more then just using a computer. Mobile devices, Internet and other network are very much within the scope of the discipline. It also includes the analysis of images, videos, and audio [3]. The focus of this kind of analysis is generally authenticity, comparison and enhancement. 
Among the specific topics, in any criminal proceedings, the most important is the concept of authenticity of the evidence gathered in the preliminary investigation. This problem is particularly complex due to the characteristics of the evidence gathered in digital form. In accordance to Art.167 of the Polish Code of Criminal Procedure, 1997 (currently in force), the evidence shall be carried out on the likes from office. Reading the literal provision of the Code of Criminal Procedure, the legislature introduced the burden of proof, it means that you cannot refuse to take evidence, regardless of whether it charges someone or indicates his innocence [4]. The provision of Art. 168 of the Code also indicate that it does not require proof of facts of common knowledge, however, that does not exclude the evidence to the contrary. The content of this provision regulates the institution of lighter burden of proof in the form of so-called the manifest, which is the assumption of truth and knowledge of specific facts, which need not be in the process led [5]. However, in the case of electronic evidence the art. 169 § 1 is invaluable significance, which indicates that the proposal of evidence should give the evidence and the circumstances that have to be proven - you can also specify the method of proof. The sole application of evidence on scientific grounds of procedural criminal law is considered a declaration of intent postulate that can be made both in the preparatory proceedings and in court proceedings [6]. However, attention should be paid to the reservation resulting from Art. 170 § 1 point 2 of the Code – dismiss the request of the evidence if the fact to be proved, is irrelevant to the case. This means that in the Polish criminal procedure is contained a provision allowing dismissal of the application, which is clearly intended to prolong the proceedings by trying to demonstrate or prove the circumstance having no relevance to the outcome of the case, including the excluded to the separate proceeding. Cited above regulations are relevant to the rigor of the process for the parties in the criminal proceedings. But simply gathering evidence and information in the preparatory proceedings from the perspective of every electronic evidence is reflected in the provisions of Chapter 25th of Polish Code of Criminal Procedure. Article 217 § 1 states that items that could constitute evidence in the case or subject to seizure to secure the property of penalties, punitive measures on property or claims for damages shall be issued by the court or prosecutor, in urgent cases – also at the request of the Police or other authority. It must be emphasized that pursuant to Art. 217 § 2 and § 5 a person who is in subject to the items is called for the release of them voluntarily. However, if the person refuses to release voluntary those items, the court will perform the compulsory acquisition. Urgency of the case occurs when waiting for the decision of the prosecutor or the court may result in the loss of evidence or the ability to make effective acquisition of items. Stored in the computer system files can be depending on the circumstances and technical possibilities seized with the original carrier (pursuant to Art. 217 of the Code) or seized without a carrier or copied (Article 217 in conjunction with Art. 236a of the Code). To find them, you can conduct a search of IT system its parts, or media containing the data (Article 219 in connection with Art. 236a of the Code) [7]. Search may perform conducted by the prosecutor or on the shelf of the court or prosecutor, by the police, and in the cases specified in other provisions by another authority (etc. Central Bureau of Investigation, National Security Agency, Military). With the exception that the decision of the court or the prosecutor must prove the person in which the search is to be carried out (art. 220 § 2 of the Code). Another guarantee in this regard is Art. 221, which state that a search can be conducted in residential spaces at night only in cases of emergency – where for nighttime is considered the time between 22:00 and 6:00. Be aware also that the person, to whom the search is to take place, before starting operations, should by notify about its purpose and call to deliver the objects. Search or detention items should be done according to the purpose of this action, subject to the moderation and respect for the dignity of persons, which this act applies to, and without causing unnecessary damage and pain (Article 227 of the Code). With acquisition of evidence or carried a search report is prepared on the basis of Art. 229 of the Code, it should contain a description of the case, which acquisition of items or search is compound and the exact time of commencement and completion operations, a detailed list seized items, and if necessary their description, and also an indication of order of the court or the prosecutor. If the command has been previously issued it should be mention in the protocol of informing the person whose activity is carried out, that at the request receives a decision on the approval steps. These procedural safeguards relate directly to the question of the authenticity of electronic evidence gathered. Well, only on the basis of Confidentiality due diligence, including diligence to make procedural activities, it can be shown that the data can provide reliable evidence in judicial proceedings to determine the boundaries of the crime effected, and to identify and punishment of the perpetrators. Should be indicated that electronic evidence due to the fact that it is not possible to investigate directly by human senses, without the use of appropriate equipment computer technology, therefore, does not maintain sufficient procedures and properly described in Protocol procedural actions, which have been made, as secured, by whom and where the evidence at this point is located, may avoid liability by the party responsible for its commission, which is manifestly inconsistent with the goal of every criminal proceedings.
 
References:
1. Sammons J. "The Basics of Digital Forensics – The Primer for Getting Started in Digital Forensics" / John Sammons. – 2012, Elsevier Inc., printed in United States of America, page 2.
2. Digital Evidence [Electronic resource]. – URL: http://www.nist.gov/oles/forensics/ digital_evidence.cfm – National Institute of Standards and Technology.
3. Ibidem. 
4. Dariusz Świecki "Kodkes postępowania karnego – Komentarz" / Dariusz Świecki, Michał Kurowski, Barbara Augustyniak, Krzysztof Eichstadt. – Warsaw, 2013. – LexisNexis, page 531. 
5. Ibidem, page 533. 
6. Ibidem, page 535. 
7. Ibidem, page 681. {jcomments lock}
 
 

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