1 Introduction

The use of computers has become firmly established in our lives and has become an integral part of not only physical activities (games, correspondence, watching videos, searching for information), but also legal entities (electronic document flow within organizations, communications with banks and regulatory agencies, filing reports, submitting applications), as well as public authorities (portal “Public Services”). Most modern states effectively operate e-government systems, and attempts are being made to introduce e-justice.

Not only the amount of information posted on the Internet and the number of users are growing, but also the quality of the information’s use—often up to 80% of the information that used to have a literal manifestation (photos, books, videos, texts, etc.) is stored today in a computer, on a server or on online discs (YandexDisk, GoogleDisk) without duplicating it in material form. The amount of information placed in local networks, the World Wide Web, as well as in computers and other hardware (any technical devices on which information can be recorded—a smartphone, tablet, modem, etc.), is almost endless. The insight of such information into all spheres of activity of a person and society, without exception, led to the creation of new informational categories: “virtual environment”, “electronic document circulation”, which are becoming more widespread and require legal regulation.

This also applies to the sphere of legal proceedings. In the arbitration, administrative and civil proceedings, the electronic document flow was officially introduced, and the information existing in digital/electronic form was assigned to written evidence. According to paragraph 1 of Art. 71 of the Civil Procedural Code of the Russian Federation: “Written evidence is containing information about the circumstances relevant to the consideration and resolution of the case, acts, contracts, certificates, business correspondence, other documents and materials, made in the form of digital, graphic recording including those received via facsimile, electronic or other communication, using the information and telecommunications network “Internet”, documents signed with an electronic signature in the manner established by the legislation of the Russian Federation, or carried out in another way allowing to establish the authenticity of the document in a way”. Written evidence may be submitted to the court, both in the original and in the form of a duly certified copy. In this case, the recovery of the original document submitted to the court in electronic form is not necessary, although the court has such a right.

Similarly, the Arbitration Procedural Code of the Russian Federation (hereinafter referred to as the APC RF) also speaks of written evidence: in accordance with the procedure established by the legislation of the Russian Federation, are allowed as written evidence in cases and in the manner provided for by this Code, by other federal and laws and other normative legal acts or the contract.

Article 70 of the Code of Administrative Procedure of the Russian Federation states that “Written evidence is containing information about the circumstances relevant to the administrative case, acts, contracts, certificates, business correspondence, other documents and materials executed in the form of digital and graphic recordings received via facsimile, electronic or other communication, including using the Internet information and telecommunications network, via a video conferencing channel (if there is a technical possibility for such a transfer of documents and materials) or in any other way allowing to submit the original document. …”. Thus, all three of these procedural codes contain references to the possibility of using electronic documents as a means of proving legal facts, and equates electronic information, including information obtained via the Internet, to written evidence, in other words documents. It remains to find out how this issue is solved in the criminal process.

2 Materials and Methods

The study was performed using the methods of analysis and synthesis, comparing and summarizing the norms of Russian, international and foreign legislation and scientific approaches.

The basis of the study was constituted by regulatory acts of the Russian Federation, namely: Civil Code of the Russian Federation, Civil Procedure Code of the Russian Federation; Arbitration Procedure Code of the Russian Federation, Code of Administrative Procedure, Criminal Procedure Code of the Russian Federation; Law of the Russian Federation “On Information and Information Technologies and on Information Protection”. Sources of international law: Computer Information Crime Convention, ETS No. 185; The United Nations Convention on the Use of Electronic Communications in International Contracts (concluded in 2005, adopted by the Decree of the Government of the Russian Federation No. 940 of October 24, 2013), as well as the legal norms of foreign countries (USA, England, Vietnam) in the field of electronic evidence regulation and sources.

3 Results

In the criminal process, the implementation of electronic document flow is carried out slower, and the Criminal Procedure Code of the Russian Federation will not contain special instructions regarding information in electronic form, and therefore its correlation with the list of evidence contained in art. 74 Code of Criminal Procedure has certain difficulties.

However, scientific articles deal with issues related to the existence of information and documents in digital/electronic form, electronic document flow and even “electronic evidence”, since the scope of criminal justice cannot be isolated from objectively existing trends [1]. Investigation, and often detection of crimes today is impossible without the use of this new type of information. However, in practice there are many problems associated with the extraction of information from electronic media, its verification, evaluation, storage and use. The legislator has already attempted to solve particular problems, for example Art. 82 of the Code of Criminal Procedure establishes that electronic storage media, as well as other material evidence, is stored in a sealed form, in conditions that exclude the possibility of unauthorized persons familiarizing themselves with the information contained in them and ensuring the integrity of both the information and its media; data carriers not recognized as material evidence shall be returned to their rightful owner.

Thus electronic data carriers are declared in the Criminal Procedure Code of the Russian Federation as material evidence. In cases where it is not the electronic medium itself that matters, but only the information contained in it, it is allowed to transfer information to another electronic medium, which is attached to the materials of the criminal case as a (derivative) material evidence with the obligatory reflection in the protocol of the corresponding investigative action, from which data carrier the information was extracted and to which data carrier it was transferred.

The relevant rules were included in the text of the Code of Criminal Procedure of the Russian Federation in 2012 as a means of protecting the rights of holders of electronic data storage devices. The mass seizure of computers of a company suspected of such a crime during the investigation of economic crimes led not only to difficulties in its work, but also to violations deadlines for submission of reports, payment of taxes, settlements with counterparties and other consequences paralyzing the work.

In criminal proceedings, digital/electronic information is used for various purposes and forms: on the one hand, as an information support for the investigation of crimes (special programs used in the investigation, software systems; data from automated accounting systems, etc.), on the other, as information about the circumstances of the crime and the person who committed it (video camera recordings, the contents of correspondence (e-mail, social networks, instant messengers), information on financial transactions on the company’s servers, in accounting programs; information from official websites on the Internet; e-wallet, device or software for replenishment, storage and transfer of electronic means of payment, etc.).

In the theory of criminal procedure and criminalistics information stored on electronic media is called “electronic evidence” [6]. However, this name is not accurate if we are not talking about the form (data storage device), but about the content of the evidence (information).

The content of the so-called electronic evidence is information encoded with a binary code (i.e., 0 and 1). A digital code allows information not only to be stored and transmitted, but also recognized when received by its addressees. Thus, this information is in its physical nature not electronic, but digital.

The name “electronic evidence” comes from the information storage item or device with the help of which the digital information is transmitted, received and stored. Its appearance is associated with electronic computers (computers), the appearance and popularization of which led to the penetration of digital information into everyday circulation. Thus, the legislator attributed to the computer information any information encoded in the form of an electrical signal, although, as Fatyanov AA correctly notes, not all electrical signals are computer information. Confusion in the use of the terms “electronic”, “electrical” and “digital” leads not only to the substitution of concepts, but also to their incorrect use [3].

Information that is generated, transmitted, stored on computers and other hardware is not just an electronic signal, but a signal that needs to be “digitized” in order for it to become suitable for processing by a computer (digital signal). A coded digital signal is constant, not subject to accidental or mechanical changes (intentional changes are detected by experts), and can be recorded on electronic media (flash cards, disks) or non-electronic media (optical disk) [5]. It is concluded that the information transmitted in the form of a digital signal is digital, and it is more correct to call it “information in digital form” (not to confuse the form of information with the form of evidence). Regardless of the content of the information itself (photo, video, text), until it is displayed on the screen or paper, it remains digital, but it is perceived by the subjects of the criminal process in the converted, decoded (recoded) form.

We have to note that in foreign practice there is a clear separation of the terms “digital” and “electronic”, understanding the differences between these concepts is important for criminal justice, using both digital information (digital) and electronic sources of digital (computer equipment) as evidence. and analog information [2].

Digital information has a complex technical nature, it is difficult to classify it according to the existing types of evidence and the forms (methods) of obtaining them, it cannot be unequivocally attributed to material or written evidence, it is impossible to simply review, describe or archive it. This information may be unavailable for direct perception, its decoding requires not only the appropriate equipment, but requires the involvement of experts and specialists who possess special knowledge.

Does it mean that the concept of “digital evidence” should be introduced into the criminal process as the name of an independent type of evidence? To answer this question, we turn to the basics of the theory of evidence.

Each evidence in the criminal process has the content and form. The content of the evidence means information according the circumstances relevant to the case, the form is the mode of existence of the content. The division of evidence into types is due precisely to the form, which, in turn, must correspond to the nature (type, signal) of the information and ensure its preservation in the criminal case.

In what form (form) can digital information be attached to the legal case? It seems to be that the proper word is the concept of (another) document. Documents belonging to the category of personal evidence are a form of storage and transmission of sign information, which, of course, includes digital information. The material carrier of information does not matter. The Law of the Russian Federation “On Information, Information Technologies and Information Protection” [4] (uses the term “documented information”, which is understood as “recorded on a tangible medium by documenting information with details allowing to determine such information or, in cases established by the legislation of the Russian Federation its material carrier”. Stated differently, the information must be fixed on a tangible medium; it must be defined, i.e. set forth clearly, must contain details that provide the ability to identify and verify both the information itself and the material carrier. The material carrier gives information the property of a thing, therefore, the legal assessment of the information is received only if it has a material carrier.

Thus, for the purposes of criminal proceedings, it is possible to formulate at least three concepts related to digital information.

First, it is the digital information itself, which is always on a tangible medium (electronic or non-electronic). It can be assumed that over time, subject to the full transition of criminal proceedings to electronic document circulation, digital information will be considered as an electronic document. As mentioned above, digital information is a sequence of numbers 1 and 0, which by themselves have no meaning, but allow you to save, transmit, receive, save information that is important for the criminal process content (correspondence, video recording of an event, accounting report and etc.). A characteristic feature of this information is that after extracting its content by transferring it to another material carrier, it does not cease to exist in its original form (does not change with time, is not subject to “erasure” under the influence of external factors), that is, does not lose its value. It differs digital information from a number of material evidence, from which the traces left by the crime are completely transferred to another medium (fingerprint prints) or disappear for other reasons (for example, negatives of a photographic film may fade with time). Therefore, it can, and should be stored on tangible media (flash drives, disks, computers) for as long as it takes. This means that the material data carrier of digital information should be attached to the materials of the criminal case as material evidence, and the preliminary investigation bodies are obliged to apply to them the statutory regime for the seizure, storage, copying, destruction, return, etc.

The indicated material carrier is often only a subject containing evidentiary (digital) information (as an object on which fingerprints are left), but is not evidence of any fact. At the same time, a material carrier (flash drive, disk, telephone) can certify any fact beyond its digital content (belonging to a specific person, receiving/sending a message (file) by that person, etc.).

A material carrier of digital information can also serve as a source of information on the IP addresses of computers and hardware, the ways to complete transactions, the time and date of receipt of the file, traces of changes to the source file, or traces of the malicious program. However, such data can only be obtained by an expert during computer examination, the conclusion of which is an independent type of evidence.

Secondly, the “written” form of digital information, produced by printing the content of information on paper: text, photo, etc. to ensure the possibility and convenience of its study participants in criminal proceedings. In this case, the form of evidence is a document—an investigative protocol (for example, revealing information that is located on a website or a page on social networks during computer inspection) or another document (screenshot of the page). It is necessary to add that for the purposes of criminal proceedings and for the recognition of evidence as valid, not only the content of the information is important, but also the fact of its detection in a particular person, in a certain place, at a certain date and time. Consequently, giving “written” digital information should take place in full compliance with the requirements of the Code of Criminal Procedure of the Russian Federation.

The content of the documented digital information must be complete (the entire document is printed, the photo image is decrypted of all negotiations, etc.), authentic (printout, plus source), original (printed from the original, or a copy obtained under the norms of the Code of Criminal Procedure). If there is no possibility, or there is no need to print the entire amount of information contained, for example, on a page on a social network, it is possible to draw up an inspection report reflecting the location of that part of the information that allows you to find out, for example, social circle, meeting places, etc.). A specialist should be involved in this inspection.

Thirdly, it is the digital information in the form of an electronic document. The electronic document in accordance with paragraph 11.1 of Art. 2 of the Federal Law “On Information, Information Technologies and Information Protection” [4] is documented information in electronic form, i.e. in a form suitable for perception using electronic computers, as well as for transmission over information and telecommunication networks or processing in information systems, signed with an electronic signature and provided with technical protection measures. An electronic document should be distinguished from an electronic message, as information transmitted or received by a user of an information and telecommunications network (p. 10, Art. 2 of the specified Federal Law). Electronic messages are attached to the case file in printed form as other documents or have the status of physical evidence in accordance with the rules set out above.

4 Conclusion

Thus, digital information actively enters the sphere of criminal proceedings, including through its ability to establish the circumstances relevant to the case. The definition of “digital” describes the form (signal) information, which is the content of evidence, but from the point of view of evidentiary value, digital information, despite its specificity, fits into the existing system of types of evidence. Its receipt, consolidation, investigation, storage as documents or material evidence must and can be carried out according to the rules of evidence in the Code of Criminal Procedure of the Russian Federation. It seems appropriate to amend Art. 81 (material evidence) and 84 (other documents) of the Code of Criminal Procedure of the Russian Federation by explanations of the concepts “electronic digital data carrier”, “written form of digital information”, “electronic document”.