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§ 2. Concept and essence of criminal procedure proving taking into account features of representation of the information on the facts in electronic form

Our preference sostjazatelnoj legal proceedings models naturally causes special attention to proving within the limits of this model, taking into account features of representation of the information on the facts in electronic form.

However, before we will pass to the proving analysis in the above-named plane, it is necessary to specify terminology, considering, that now neither scientists, nor the legislator, pravoprimenitel and were not defined, how to name the data fixed on the electronic carrier or transferred on channels of telecommunication communication.

Here we confess certain terminological negligence which we have shown in the previous paragraph where, perhaps, a little illegibly, used such concepts as «the electronic information», «the computer information», «the digital information», etc. time Has come to be defined how we understand the concept maintenance «the information presented in electronic form» and as it corresponds with concepts «the electronic information» and «the digital information», and also in addition to understand specificity of proofs, in the form of such information.

Historically in jurisprudence as the trailblazer the term «the machine information» has acted. V.V. Vehov defined the machine information as the information circulating in the computing environment, fixed on the physical carrier in the form accessible to perception of the COMPUTER, or transferred on telecommunication channels [91 [92] [93]. However, subsequently from this term have refused, having passed on and nowadays used word-combination «the computer information» which was extended in the anticriminal legislation and the scientific literature.

So, V.V. Krylov under the computer information understands data, knowledge or a set of the commands (programs) intended for use in the COMPUTER or managements by it, being in the COMPUTER or on machine carriers.

V.V. Vehov in the dissertational research on competition of doctor's degree carries out the detailed analysis of the definitions of concept given by different scientists the computer information, and as a result suggests to understand as it «data (the messages given), being in the elektronno-digital form, fixed on the material carrier or transferred on channels

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Communications by means of electromagnetic signals.

According to N.A.Zigury, «the computer information» are the data presented in the elektronno-digital form on the material carrier, created by equipment rooms and software of fixing, processing and an information transfer, and also a set of the commands (programs) intended for use in the COMPUTER or managements by it »[94]. N.A.Zigura convincingly enough shows, that in jurisprudence as the most widespread term« the computer information »[95 [96] acts. Last changes of the legislation about opeartivno-razysknoj and criminal procedure deja -

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telnosti, by the way, it confirm.

However, is in a science and other opinions. So, V.A.Meshcherjakov believes necessary to refuse the term «the computer information», and offers in

Kind of alternative the term «elektronno-digital object». We also do not consider the aforementioned term quite adequate in a context of a problematics of criminal procedure proving. The reason - discrepancy of legal and technical aspects. We base our relation on that position which was accurately and unambiguously expressed by N.A.Ivanov.

This scientist, in our opinion, has convincingly enough proved limitation of the term «the computer information», its discrepancy to technical understanding of the nature of the information fixed on machine carriers.

Being guided by terminological accuracy, we, as a whole, support the approach of those experts which suggest to lean against the term «the digital information» (N.A.Ivanov, S.P.Kushnirenko). Arguments of supporters of "digital" understanding of the information are especially technological, but are exact. So, N.A.Ivanov, making a start that the data fixed on machine carriers, are described in programs of elektronno-computer facilities within the limits of a binary notation and have the discrete nature, the information coded and fixed by signals of two levels approves, that «, has received the conditional name« the digital information "or" the information in the digital form »[97 [98] [99]. In its treatment the digital information looks as« the information fixed on machine carriers, or transferred in space in the form of discrete signals - without dependence from their physical nature »[100].

In turn S.P.Kushnirenko understands any information presented in the form of sequence of figures as the digital information, accessible to input, processing, storage, transfer by means of technical devices. The external form and a way of perception of the information is important not, he underlines, and the way of its existence expressed in its fastening by means of digital technologies [101].

Thus, the technological nature of the coding of minimum units of the information while supporters of use of the term «the computer information» make a start from the device of storage, is put in a basis of "the digital approach» information analyzed by us of processing and data transmission of data - the computer. It is thought, that correctness of supporters of the first approach is proved by the life as it is more and more active in information processes various means in which the information is created, processed, transferred and stored in the digital form and which cannot be carried actually to computers are used: electronic notebooks, cameras, dictophones and videocameras with digital system of record, mobile communication means, etc. [102 [103]. The Same N.A.Zigura, being the supporter of the computer approach, recognises, that now as the computer information much more various information is meant.

Accordingly the digital and computer information correspond as the general and private, that convincingly shows S.P.Kushnirenko on an example of perception of the video image, remained in memory of a digital videocamera is becomes by means of the usual TV without the computer; this videorecording can be copied on other carrier - too without computer application. In all these cases the given information will be digital [104].

We share opinion that it is necessary to refuse term use «the computer information» in the criminal procedure and criminalistics, and to leave on qualitatively higher qualitative level of definition of the given group of sources of data, having designated it as - «the digital information», including the computer information only a part of total amount of the digital information [105].

At the same time, focusing of definition of the digital information it is exclusive on technical aspect conceals in itself danger in its potential limitation. It is a question that limitation of a digital signal only in discrete parametre of modulation of signals will lead to that by working out of new parametre the understanding of the digital information will be made unreasonably narrower. Thereupon we believe necessary to refuse the formulation placing emphasis on step-type behaviour of a digital signal. Thereby, we consider, that the information called by "the digital information» should be understood as the information fixed on machine carriers without dependence from their physical nature.

The given ascertaining marks important enough stage in our research as our further analysis will make a start from it and. But it is necessary to specify one more moment. In the literature there is a term «the electronic information». And it has many advantages in comparison with «the digital information». We and actively used it during our analysis in the previous paragraph and in articles. It is thought, that with a view of convenience we will continue it to do, but it is necessary to make certain terminological specification. In our opinion, «the information presented in electronic form» which, in our opinion, it is possible to consider as analogue of the term «the digital information» is more expedient to use as generalising concept. We consider as advantage of our term that it means itself(himself) «the digital information presented in electronic form», fixed on machine carriers without dependence from their physical nature.

It is necessary to add also, that in the Code of Criminal Procedure in a number of articles (article 81-81.1 UPK the Russian Federation) is used the term «an electronic data carrier». An electronic data carrier according to «GOST 2. The interstate standard. Uniform system of the design documentation. Electronic documents. General provisions» [106] is the material carrier used for record, storage and reproduction of the information processed by means of computer aids.

With the account above the told it is believed possible to draw a conclusion that to the information presented in electronic form, it is necessary to carry the files containing photographic images, a video shooting and a sound recording, databases and the programs, presented in various formats, system files, office utilities and reports of their work, and also the information physically placed in klasterah of the carrier. This information can be in the remote files, not marked areas of a disk, on the formatted logic disks and in their loading records. Listed objects all above in aggregate can be sledoobrazujushchimi, contain the evidentiary information and be used in criminal procedure proving.

Having defined with the concept maintenance «the information presented in electronic form», follow to consider the problem on that influence which renders and can potentially render on criminal legal proceedings digital technologies. In the previous paragraph as one of directions of influences of information on criminal trial we allocated introduction of electronic document circulation. Speaking in another way, whether obosnovanno to bring an attention to the question on transition to new technological way in criminal procedure proving in a context of wide use of information, telecommunication technologies. Eventually, whether has the right to life such concept as the digital (electronic) proof (the digital information presented in electronic form) and whether is necessity to fix it in a positive law?

Earlier we already qualified sostjazatelnuju legal proceedings model as preferable, both in a general plan, and with reference to use in proving of electronic technologies. It is obvious, that if we speak about sostjazatelnoj to re-planning of all architecture of the criminal trial it will considerably change its many components - first of all technology of proving of judicial true. In particular, it involves refusal of investigatory-judicial monopoly for manufacture of knowledge of a crime ("neprestuplenii") and transition to a mode so-called «free proving» with its transferring pravoobrazujushchego (faktoobrazujushchego) a stage in judicial stages.

From free proving which is meant by us, it is necessary to distinguish concept «the free proof», the offered V.A.Kamyshinym who defines it as everyone significant for criminal case and remedially not formalized social information fixed on the material carrier by any person and any way, supposing its decoding which high quality is defined under the free discretion of body of the criminal trial. The free proof assumes preservation of investigatory model that does not allow to speak about competitiveness. As truly approves I.F.Demidov, competitiveness during investigation is excluded in view of absence of equality of the parties. And, nevertheless, the pre-judicial manufacture considered as preparation for proceeding, we should have such that any subject of proving could receive the actual bases of the "pravopritjazany" before court.

It is obvious to us, that a question on revision, and in an ideal - about liquidation of out-of-date investigatory forms has ripened for a long time already. About it A.S.Alexander approving wrote in 2001, that the model of the justice adequate to a lawful state, never will be quite finished, guarantees of human rights and the citizen will not be provided, and criminality counteraction will not be effective if the investigatory form is preserved. It is useless to modernise, preliminary investigation cannot be built in «fair proceeding». Having created the judicial authority and having given only to it to solve the basic questions of criminal case, follows likvidiro - [107 [108]

vat the power investigatory and to replace its "accusatory", having given its worthy

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The opponent in the name of protection.

As obosnovanno approve A.S.Alexander, A.E.Bosov, V.V. Terekhin erected in the law will to absolute true suppresses the person and depreciates (up to cancellation) all dramatic art of search of the true, put in pawn in structure sostjazatelnogo justice. The presumption of innocence, competitiveness and so forth technical (legal), but also natural (for the person) "methods" of an establishment of true, justice are emasculated. Fixing the standard investigatory concept of "objective truth" or doktrinalno - model of the criminalistic analysis we implitsitno introduce investigatory kognitivnuju model in mysledejatelnost participants of process. They become hostages of a situation, where the inspector the owner. Force of investigatory true keeps on authority of the inspector, and further - the executive authority - the states. « The investigatory proof »is the fact in a frame of the investigatory report, in a broad sense - the"letters", authorised by the power imposes to the addressee of this letter the will, the interpretation of sense of the facts [109 [110].

Let's result the main positions of the new theory of the criminal procedure proofs formulated by prof. A.S.Aleksandrovym and its followers [111] which, in our opinion, have conceptual, methodological value for introduction of information technologies in process of proving and transition to new type of criminal trial - more fair and effective, than existing.

A.S.Alexander notices, that the modern mixed criminal trial of the Russian Federation, as a matter of fact, is investigatory-search and

Offers instead of it «sostjazatelnuju a paradigm of proving of true and information-communicative model of interaction of participants inherent in it preliminary (pre-judicial) and judical inquiry». Unlike modern model of criminal trial of the Russian Federation where as the author writes, «the owner of criminal case and the main subject of proving is the inspector» it is offered, that the investigatory judge and the parties equal in rights became such owner «: charges and protection». Accordingly, as the subject of proving from charge, considers A.S.Alexander, there should be a public prosecutor, and from protection - convicted and its defender. Their rights should be equal, including regarding reception of an actual material and participation in judicial proving. The inspector, according to A.S. Aleksandrova, «from the owner it should be transformed to the servant of the public prosecutor which finds out, solves a crime, receives an actual material by carrying out of public and private investigatory actions», that is the author suggests to combine in the name of the inspector functions of operatively-search activity and pre-judicial investigation [112].

According to this concept of Ampere-second. Aleksandrovym it is offered «to deduce pre-judicial criminal manufacture from structure of judicial proving, than disagreements between operatively-search activity, a pretrial investigation and lawyer investigation act in film. The author proves necessity to refuse any methodology in the theory of proving and is underlined, that« any "methodology" is set of the restrictions voluntary taken up by the researcher. According to A.S.Aleksandrova, advantage of one method over others also means pauperisation of the possibilities not only in research, but even in subject detection; display logotsentricheskogo outlooks.

Proceeding from specified, A.S.Alexander proves necessity to refuse «from dialectic materialism as method of knowledge and designing of a criminal procedure reality», from «objective truth concepts - in favour of true judicial - probable, conventional, persuazivnoj, coherent» and from the theory of reflexion [113 [114]. Thus he considers, that «the common sense and public opinion» is the true indicator. True, in its opinion, «be faster the order, the form, procedure of judicial knowledge, instead of the purpose, result» should. Accordingly, «the court should aspire not to learning« an objective truth », and to provide a fair order of litigation and in its frameworks to find the optimum decision on business» [115]. According to A.S.Aleksandrova and M.A.Nikonova, «judicial true» grows out of pleadings. Pleadings oposredstvuet smysloproizvodstvo. Criminal procedure proving represents "semiozis", that is generation and functioning of signs, forming of semiotics structure [116].

During criminal procedure proving, marks prof. Alexanders, «occurs validity recognition» in the form of language (sign) structures which are created by speech in session of the court. They are perceived, understood by a judicial audience rational by and at unconscious level on those schemes and models (kognitivnym) which are put in pawn in mentality of the person language. Signs, the author writes, send not to a reality, and initiate kognitivnuju structure which and is system of the representations acquired with language about the world [117].

As is known, against the given concept were variety of remarks is stated. The main thing from which it is reduced to that introduction of this concept in pravoprimenitelnuju practice of the Russian Federation in modern conditions of a condition of criminality in Russia, a political-economical situation in the country and conditions of a readiness of this concept more than is doubtful. Thus it is necessary to consider and that in those countries of the world where there is a classical competitive criminal trial (the USA, the Great Britain, etc.), last decades, in connection with essential qualitative change of criminality (organisation, professionalnost, a transnationality, the raised social danger, etc.), and also in connection with growth of its separate dangerous kinds of crimes (acts of terrorism, a human trafic, a drug trafficking, etc.), extend and amplify powers of bodies of pre-judicial manufacture as subjects of proving, value of institute changes also anticipate -

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telnogo investigations in inkvizitsionnom its understanding.

We are not so sceptically adjusted and we believe, on the contrary, time to transition on sostjazatelnuju a paradigm of criminal procedure proving has come. And it is not formal, and in essence: with liquidation of the most odious displays of investigatory model.

In an ideal we see the organisation of pre-judicial manufacture on the basis of the concept of so-called "police inquiry", with transferring of the majority of procedures of proving to court. As the police inquiry concept more than once was a subject of the analysis of representatives of Nizhniy Novgorod criminally - remedial science [118 [119] so far as we will be limited only to transfer of its basic characteristics:

1. The public prosecutor is body which officially formulates obvine - nie in court. It presides at activity of police during pre-judicial manufacture.

2. At realisation of inquiry the protection party under the general rule has the right to collect justificatory proofs and to represent them in the subsequent to court.

3. The defender is supposed from the moment of any restriction of the rights and freedom of the person in which relation criminal prosecution is carried out.

4. Inquiry is limited to collecting of such proofs which would allow with sufficient validity to solve a question on a presentation about - vinenija / the criminal claim.

5. The court authorises or in other form carries out the obligatory control over application of measures of remedial compulsion. It certificates the major proofs which can disappear before proceeding, both at the initiative of the public prosecutor, and at the desire of the convicted.

6. Proofs are any data about circumstances the affairs received from subjects (processes) or from persons which are represented by the parties. Any data carried to business if at their reception were not sushche - stveno are broken the rights and freedom of the person and the citizen, should be admitted in use in judicial proving for true finding-out.

This last position deserves separate attention. It is meant, that any party has the right to collect almost any information and by all means, not forbidden by the law. Thus, criminal trial begins with a stage of preparation of business to trial which is initiated by a presentation by the public prosecutor of the criminal claim in court. To court police activity on an establishment of actual facts of business and preparation for indicting takes place not remedial, mainly administrative. Accordingly, protection possesses competence to spend so-called lawyer investigation, carrying out all legal proceedings, except for operatively-search actions and some actions, coercive measures demanding application (a search, dredging, detention).

That is, competitiveness assumes such model of proving where the parties collect, represent and investigate proofs, put arguments in advantage and against the charge thesis. In our opinion, theoretical and rational objections against such model cannot be, there can be only obstacles political and economic - tactical.

And we consider, that irrespective of, whether there are we the next years with investigatory model or not, development of new information technologies will inevitably raise the question about alternative to the written document. Otherwise we risk to remain with the out-of-date, become obsolete criminal trial while private branches of law already have left far forward on a way of introduction of information technologies to proving process.

Let's consider prospects and offers on modernisation ugolovnoprotsessualnogo provings on the basis of information technologies - and such researchers, as O.V.Kachalov, J.A.Tsvetkov bring this attention to the question. They believe, that transition from paper to electronic criminal case [120] can become one of universal tools of modernisation of the criminal trial.

The given experts believe, that criminal proceeding will have in electronic form following advantages:

1. Reduction of terms of the criminal trial by reduction of terms of a direction of petitions, transfers of materials of business to court for application of a preventive punishment, a summer residence of the permission to carrying out of investigatory actions which are made only under the decree, transfers of materials to the head of the organ of inquiry, to the public prosecutor, in court for consideration of complaints, realisation of checks etc. Also are reduced terms of acquaintance of participants of process with criminal case materials, as it is possible to do it at any time (and not just working), in any place and simultaneously by all participants of process.

2. Access improvement to the remedial information of all participants of the criminal trial, creation of additional possibilities for their interaction. So, petitions and taps in electronic form can be declared and be resolved, the expert and the expert can distantsionno direct the conclusions, in some cases the decision about examination appointment also can go to the expert in electronic form.

3. Creation of additional possibilities of maintenance of the right of defence of corresponding participants of the criminal trial. So, for example, the defender distantsionno can direct to the investigator, the inspector, court documents for their familiarising with business in quality of proofs, to get acquainted with criminal case materials, to bring complaints in electronic form etc. It will reduce an operating time of the defender, its expenses and, finally, will positively affect availability of the qualified legal aid for suspected and convicted. Same concerns also representatives of the victim, the civil claimant, the defendant and the private prosecutor.

4. Creation of an additional guarantee of the right of participants of the criminal trial on access to the remedial information, that finally influences degree of real security of the rights and freedom of each of participants of criminal trial.

5. Increase of requirements to quality of work of the investigator, the inspector, court, quality of drawing up of remedial documents, manufactures of investigatory and other legal proceedings, increase of responsibility of the officials responsible for manufacture on business and quality of the criminal trial as a whole.

6. Simplification of check of materials of criminal case by the head of the organ of inquiry, the public prosecutor, court, and the control over manufacture on business in whole (materials for check are located in corresponding section where corresponding participants of process get access). Process of a summer residence by court of the permission to carrying out of corresponding legal proceedings (a search, dredging, the control and record of negotiations etc.), process of prolongation of terms of preliminary investigation by the head of the corresponding organ of inquiry will become simpler and will be reduced.

7. Reduction of expenses during criminal proceeding (the postage, expenses on manufacturing of copies of materials of criminal case, expenses on a legal aid, some remedial costs etc.).

8. Organizational simplification of process of revision of judgements by higher degrees of jurisdiction (regarding access to remedial documents and the materials, coming under to check).

9. Ordering and structurization of materials of the criminal case, necessary in work of the investigator, the inspector, the public prosecutor and court.

10. Possibility to automate statistics conducting on criminal cases.

11. Essential decrease in risk of falsifications and corrections in criminal case materials (first of all concerning investigatory and the legal proceedings which materials are already placed on an electronic portal).

12. Increase transparentnosti justice on criminal cases [121 [122].

It is necessary to tell, that the resulted arguments «pro» tehnologizatsiju

The criminal trial convince. The similar position is stated by P.S.Pastuhov in which opinion the standardised sets of services to the population in various spheres in the form of so-called «administrative regulations» already became a reality. In particular, similar «the administrative regulations» regulate actions of employees of parts of law-enforcement bodies on duty a stage of excitation of criminal case. The following step consists in transfer of activity of employees of law enforcement bodies on pre-judicial preparation of materials of criminal case for consideration in court in an electronic format. Thus, from written legal proceedings there is a transition in a telecommunication network. The specified researcher suggests to translate first of all in an electronic format productions of under-quality goods and manufactures on affairs about computer crimes.

A.F.Abdulvaliev considering insists on transition to electronic document circulation also, that criminal trial modernisation should consist in refusal of paper remedial documents and transition to criminal case conducting in the electronic form. According to this author, transition to an electronic mode of production on criminal case should simplify collecting of proofs and drawing up first of all

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Remedial documents.

In general, we need to establish only, that the question is already put. It is necessary to speak not so so much about an urgency of transition to electronic document circulation, how many about necessity of working out of specific proposals for the legislation and creations of corresponding specifications. A question only in, when and how. Being are solidary from A.F.Abdulvalievym in that, as to necessity of revealing of technical and legal preconditions for criminal trial transfer for an electronic format, we believe, that it is necessary to bring an attention to the question on replacement of the paper document with the electronic.

Certainly, the decision of this question business not the near future. Most likely, for a variety of causes the paper document a lot of time will remain the basic carrier of the evidentiary information. But already real steps on it [123 [124] [125] direction should be now made, differently we risk strongly to lag behind the developed laws and orders, instead of stimulating reorganisations of domestic criminal trial on the is progressive-technological beginnings. Preservation of modern criminal procedure document circulation leads to preservation of that bjurokratizatsii, which as we consider as the cancer tumour has knocked domestic criminal trial. As truly marks the Item With. Shepherds, negative consequences of domination of written document circulation already are now obvious to efficiency of our criminal trial and its backlog from level of use of the electronic information in all spheres of a public life, including in some legal branches (grazhdansko - legal) [126 [127].

In practical sense the question on working out and concept introduction «the electronic remedial document», as carrier of the electronic evidentiary information is solved. The given document should be introduced as alternative to the paper remedial document, at first in the cases defined by the law, with prospect of its full replacement of a paper. Realisation of this innovation demands the analysis as legislative preconditions and of some positions of the theory of proving. We will begin with the first.

As any proof finally gets the documentary form, we will address to concept «the remedial document». The operating criminal procedure law contains definitions of the remedial document and uses this word-combination (ch. 2 items 474 UPK the Russian Federation). In the theory the remedial document is defined as a material data carrier on which the official or the citizen have fixed when due hereunder data on the circumstances mattering for business, in written, photographic or other form. The made definition quite operationally, especially if to expand it by instructions on its electronic kind. However, and practical, in our opinion definition of the remedial document as the document used in connection with criminal proceeding looks more capacious. Its practicality us sees that it covers including those documents which were constituted not in connection with criminal case, but subsequently have appeared are involved in criminal trial, as concerning a crime («other documents»).

As one of versions of the remedial document the electronic document acts. This fact will be realised at legislative level in the positive criminal procedure legislation. However, what such the electronic document how to confirm absence of its updating and to use in litigation? In the Russian legislation definition of the term of the electronic document has appeared for the first time in the Federal act from 27.07.2006 № 149-FZ (red. From 05.04.2013) «About the information, information technologies and about information protection» in which the electronic document - the documentary information presented in the electronic form, that is in a kind, suitable for perception by the person with use of electronic computers is said, that «, and also for transfer on informatsionnotelekommunikatsionnym to networks or processings in information systems.

Many Russian scientists gave the definitions of the electronic document and their classification long before acceptance specified above normativnopravovyh certificates. So, according to A.P.Vershinin «the form of the electronic document is its discriminating sign in comparison with other documents. Electronic« the form »is shown in technical elements and properties of a data carrier. It is created by means of use elektronnotehnicheskih means of fixing, processing and an information transfer» [128 [129].

On I.N.Podvolotsky «the electronic document are any data, hranimye, processed and transferred by means of the automated information and telecommunication systems on which basis court, the public prosecutor, the inspector, the investigator in an order defined ugolovnoprotsessualnym by the legislation, establishes presence or absence of the circumstances which are coming under to proving at criminal proceeding, and also other circumstances important for criminal case, received with observance of a remedial order of their collecting and attached to criminal case by the special decision (definition)».

The widest definition is given V.B.Vehovym, the electronic document - the document in which the information is presented in the elektronno-digital form, and the documents which all requisites are in difficult formats - in the form of the computer information concern this category, for example: the elektronno-digital documentary message transferred on channels of telecommunication; electronic page of a global network of COMPUTER "Internet"; a site; a paperless valuable paper; a digital picture, video-and an audio record; a file with the data, allowing them to identify; electronic magazine of the automatic registering device; an electronic notebook of the cellular

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Radio telephone; the computer program; a database. Other definition of the given term meets in the draught federal law «About the electronic document"-"the electronic document - the form of preparation, departure, reception or storage of the information by means of the electronic means, fixed on a magnetic disk, a magnetic tape, a laser disk and other

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The electronic material carrier ».

In our opinion, rather the norm established regarding 1 article 6 of the Federal act from 27.07.2006 № 149-FZ (red has great value. From 05.04.2013) [130 [131] [132] «About the information, information technologies and about information protection», namely: «the Information in the electronic form, signed by the qualified digital signature, admits the electronic document, equivalent to the document on the paper carrier, signed by the sign manual, except a case if federal acts or standard legal acts accepted according to them establish the requirement about necessity of settling document exclusively on the paper carrier».

Key value the formulation that the electronic document is «equivalent to the document on the paper carrier, signed by the sign manual» here has. Thus, it is necessary to establish, that the question on the electronic document is positively resolved by the legislator in sphere of fulfilment of civil-law transactions, rendering of the state and municipal services, execution of the state and municipal functions and at fulfilment of other legally significant actions.

In criminal trial on the agenda for today it is not necessary a question on that, to enter or not to enter concept «the electronic proof» and in the near future the electronic document will represent itself as high-grade replacement or an equivalent of the paper document. We believe, that in immediate prospects there will be a replacement by electronic technologies of the paper. We tend to that possibly is a question of decade or hardly more. Though O.V.Kachalov and J.A.Tsvetkov adhere to more radical sights and insist on expediency full refusal of paper criminal case in favour of the electronic. However, we consider, that the above-stated scientists nevertheless underestimate conservatism of domestic law-enforcement system.

Nevertheless, already now as perspective directions of development of the judiciary of Russia information of the judiciary and out of - [133] is designated

drenie modern information technologies [134]. As actions of the near future, the information technologies directed development in vessels of the general jurisdiction and arbitration courts the following is named:

- Creation of a modern information and telecommunication infrastructure of a uniform information field of the Supreme Court of the Russian Federation and federal courts of the general jurisdiction, world judges, bodies of judicial community, system of Judicial department at the Supreme Court of the Russian Federation, and also maintenance of high level of its availability, efficiency of interaction with citizens and the organisations at the expense of development and introduction of programmno-technical decisions of state automated system "Justice" in vessels of the general jurisdiction and system of Judicial department at the Supreme Court of the Russian Federation;

- Creation of a complex of scanning and storage of electronic images of judicial documents, and also work on transfer of paper mills in an electronic kind;

- Creation of conditions for the electronic legal proceedings providing simplification of procedures of bringing a case before the court of statements of claim, complaints in electronic form, receptions of copies of documents and acquaintance with business materials;

- Creation of specifications for maintenance of interaction of vessels of the general jurisdiction with information systems of the State Office of Public Prosecutor of the Russian Federation, the Ministry of Internal Affairs of the Russian Federation, Federal service of bailiffs, Federal service of execution of punishments and other departments in electronic form;

- Equipment of vessels and system of Judicial department at the Supreme Court of the Russian Federation the software and key carriers for conducting electronic document circulation with digital signature application;

- Equipment of federal courts of the general jurisdiction by complete sets of the equipment for interrogation of victims and witnesses without possibility of their visual supervision;

- Improvement of quality of work of vessels (the fast and qualitative permission of lawsuits), increase of an openness, availability and transparency of activity of vessels, courts of justice and bodies of judicial community on the basis of information-communication technologies at the expense of application of systems of video-and audiorecording of a course of sessions of the court, programmno-means of numbering of documents and the video-multiport conference equipment.

- Creation of "cloudy" computing architecture which will allow to use as much as possible effectively, reliably and safely technologies and the specialised "cloudy" software for automation of judicial and general office-work, that will essentially reduce further expenses for expansion, support and software modernisation;

- Expansion of possibilities of use of mobile devices as access to information resources, program complexes and databases of federal courts of the Russian Federation by means of use of "cloudy" technologies for judges and workers of the device of vessels - mobile justice;

- Creation of system of a personal video-multiport conference of judges of arbitration courts of the Russian Federation, in particular introduction programmno - a hardware complex of a video-multiport conference of judges of arbitration courts, the equipment of halls of sessions of the court by videocameras of dome type and creation of system of storage of videorecording of all sessions of the court;

- Development of electronic justice and integration with information systems of public authorities;

- Creation in arbitration courts of specialised legal electronic libraries;

- Creation of mobile mobile offices of judges with application of a video multiport conference for carrying out of exit sessions in geographically remote settlements of the country, having expanded with that functionality of delivering justice. Similar offices will make justice more open and accessible. As technical base use of a special passenger minibus with the expanded functionality is supposed;

- The organisation of entrance scanning of all documents arriving in arbitration courts and formation of electronic affairs (the pilot project «Electronic business»).

The point concerning electronic business looks especially remarkable, on what fairly pays attention of A.F.Abdulvaliev. He believes, that the major short story of the federal target program is creation of the pilot project «Electronic business». The essence of designed model consists in the organisations of entrance scanning of all documents arriving in courts and formation of electronic affairs. Such transition to the electronic form of business management in the beginning in arbitration courts, and then and in all by should be carried out

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The others, including criminal courts.

Thus, it is necessary to expect, that the next years a question on transition to electronic document circulation including in proving, will get concrete outlines in the judiciary of our country. Here again it is necessary to notice, that the electronic document should not take a place of the appendix to the report, and find the status of the high-grade document. Our position in this question is reduced to that the traditional approach of the Soviet remedial doctrine to an estimation of the appendix to the report as concerning the paper carrier it is necessary for derivative, dependent object to subject audits. Results of scientific and technical revolution have led to that in some cases it is possible to speak about the information superiority of the appendix in the electronic [135] form. In particular, videorecording of interrogation is much more convincing than the record of interrogation constituted duly. Videorecording of the event of crime fixed on the chamber of a mobile phone, is capable to act by the informative possibilities, at least, on a level with the record of interrogation about the same event.

As R.A.Bostanov, between the maintenance of the report of investigatory action and that the audio - is fixed in applied to it notices, videorecordings, sometimes there are essential divergences. As it is clear: means with which help such fixing is carried out and information are more objective and are exact, than the inspector who writes down in the report data of the sense organs. Meanwhile, the judiciary prefers the report as to an official source of the proof. It creates in practice of difficulty [136 [137]. The postulate of the criminal procedure doctrine considering the appendix to the report as the secondary evidence should be denied in a part, concerning the electronic document.

Thereupon a position of some researchers of that the electronic variant is only the appendix to the paper document, it is necessary to recognise unpromising and become outdated. So, V.A.Meshcherjakov approves, that between the "paper" document and its electronic variant is not present and there can not be an identity. In this case it is possible to speak only about functional equivalence (for example, usual money and ecash). Radical way of the permission of the developed situation is acceptance of separate chapter UPK which would enter corresponding concepts and has established an order and forms of use of specific electronic objects in criminal trial, correctly would define specificity of investigatory actions concerning computer objects.

Though the similar innovation also will be a considerable step forward, but the electronic report should become not the appendix to paper, and the independent document. But actually it and so it is supposed the criminal procedure law (ch. 4 items 164 UPK the Russian Federation). We do not see special sense to accept the whole chapter in UPK the Russian Federation at preservation behind the electronic information of the status of the appendix. If to talk about the electronic remedial documentation, such documentation should become at least real alternative of the traditional remedial documentation.

A.H.Garifullina, O.S.Suhareva believe, that the future behind development of the electronic report, as means of fixing of the remedial information on business. And, according to these researchers, the legal basis for introduction of the electronic report in criminal trial is already ready, as the basic requirements to «electronic proofs» already are available in point 6 of a part of 2 articles 74 and a part of second article 84 UPK the Russian Federation.

For the present moment it is possible to say that the legal basis in the information right is generated and there is its introduction in ugolovnoprotsessualnoj to sphere. Norms to which refer A.H.Garifullina, O.S.Suhareva a maximum assume to giving of the electronic information of the status of the appendix to the report to investigatory action, that essentially limits possibilities of scientific and technical progress in sphere of information technologies. It already and so it is fixed in the current legislation. But if we leave all as is, we risk to remain with archaic, paper document circulation, having transformed the inspector from "researcher" in the expert in red tape. We recognise that, most likely, nauchnotehnichesky progress "will press through" mass distribution of electronic technologies to proving. And thereupon we believe, that introduction of electronic technologies in criminal procedure proving occurs through creation of [138 [139] legal, legal bases in the law of evidence. And further, use of achievements of information will be approved by practice.

Electronic technologies are more and more used in the criminal trial and already now we have come to that operating level of standard regulation of the criminal procedure law of evidence is displaced in sphere of electronic document circulation and technologies. Therefore interaction of scientific and technical progress and criminal procedure proving in aspect of use of the electronic information should to be led, in our opinion, in two directions: 1) the standard. In its frameworks ugolovnoprotsessualnaja the science offers the legislator the optimum remedial form of use in proving on information criminal cases. Our following paragraph will be devoted its detailed working out; 2) the technical. It is not less important, differently the norms regulating legal aspects of use of the electronic information in criminal procedure proving "will hang in mid-air", remain dead.

Under A.F.Abdulvalieva's remark, for successful use of technology of electronic criminal case it is necessary, that all members of a society were able to use freely computer technologies [140].

Let's notice, that a similar sort of discussion are led and in the western scientific literature. There, also there are supporters of full transfer from criminal trial on electronic document circulation and arguments mainly economic character are resulted. However, judges state scepticism concerning it and specify in possible costs in the form of danger of loss or damage of the electronic information [141]. Quoting one of the American authors, I.V.erpy the lion does a conclusion, that the majority of lawyers consider more convenient work with the information on the paper carrier on a habit. However the paper epoch will inevitably come to the end, and they should adapt to new document circulation. Therefore he suggests to bring in the list of "other documents» ch. 2 items 84 UPK the Russian Federation «documents and data in the electronic and digital form».

However, it is possible to recollect, that to formation of written criminal trial absence of formation at bolshej has not prevented a population part. And now: backlog of public consciousness from scientific and technical progress cannot serve as the reason for braking of the last. We believe, that transfer of technology of criminal procedure proving in an electronic information format near future business.

Let's draw conclusions under the paragraph. It is necessary to refuse term use «the computer information» as not covering all volume of the data received and fixed in electronic form. To the information presented in electronic form, it is necessary to carry the files containing photographic images, a video shooting and a sound recording, databases and the programs, presented in various formats, system files, office utilities and reports of their work, and also the information physically placed in klasterah of the carrier. This information can be in the remote files, not marked areas of a disk, on the formatted logic disks and in their loading records. Listed objects all above in aggregate can be sledoobrazujushchimi, contain the evidentiary information and be used in criminal procedure proving.

Arguments of some researchers about unreliability of use of electronic technologies in proving should be denied. Concerning the electronic information constituting the maintenance of proofs, are available wide technical, expert possibility on check of its authenticity; the subjective factor here plays much smaller value. Though the definitive estimation of such proof still remains behind court.

In the domestic criminal procedure law of evidence and the theoretical doctrine there should be a transition from formal to the material approach at an estimation of the information presented in electronic form in [142] quality of the proof. The main thing that the information "is demonstrative", that is it is convincing, useful to an establishment of the actual facts having essential value on business.

It is necessary to recognise correctness of the concept of judicial true, that is the true, proved in court, this probable knowledge, the assumption of high degree verojatija acts as a process product. A definitive estimation of the information presented in electronic form as proofs should remain behind court.

The decision doktrinalnogo a question concerning evidentiary value of the information presented in electronic form, consists in unification of ways of reception of proofs, both investigatory, and a different way. The charge and protection party objectively cannot be equal in access to the power on reception of proofs, but the electronic information equalises their possibilities in proving.

Statement of a question about evidentiary values of the information presented in electronic form which is received in a course operativnorazysknoj activity is actual. The major importance of acceptance and coming into force FZ from July, 6th, 2016 № 374-FZ consists in occurrence of a new way of reception of proofs, by «reception of the computer information» and expansion of powers of bodies of criminal prosecution on reception of the evidentiary information presented in electronic form.

Any ORM, connected with withdrawal or copying to "the computer information» can be presented the inspector and court, the body authorised on carrying out of HORDES, for use in criminal procedure proving.

Follows on doktrinalnom level positively to solve a question on possibility of reception of the computer information with use of any means, information technologies from any information channels, resources about signs of prepared, made or perfect illegal act on which preliminary investigation manufacture is obligatory, and also about the persons preparing, making or made such illegal acts.

In the future «the federal criminal police» should be allocated by powers on reception of the fact sheet about circumstances of the committed crime from subjects, processes, any objects in the ways not forbidden by the law. Proofs in the form of the electronic documents, polices constituted by officers by manufacture, both public, and private investigatory actions, should be considered as a source of the evidentiary information.

Development of digital information technologies will inevitably raise the question about potential replacement of the paper document electronic, as means of fixing of proofs on business. Already time now has come to refuse the Soviet remedial doctrine to an estimation of the appendix to the report as concerning the paper carrier it is necessary for derivative, dependent object to subject audits. And in the future transition to electronic document circulation, including in proving is natural. «Electronic criminal case» possesses a number of powerful advantages in comparison with the modern paper analogue. « The electronic remedial document »in the long term should become the basic carrier of the electronic evidentiary information and alternative to the paper remedial document. The paper document should be considered as archaic, mismatching current level of scientific and technical progress. Interaction of scientific and technical progress and criminal procedure proving in aspect of use of the electronic information should be led in two directions: 1) the standard; 2) the technical.

Preferable to use in criminal procedure proving of electronic technologies is sostjazatelnaja legal proceedings model, however scientific and technical progress should entail necessary changes in a positive law and at preservation in Russia investigatory process. The decision of a problem of use of result of lawyer investigation in proving thereupon sees: through their leading to concept «actual materials», including «electronic data carriers».

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A source: KUVYCHKOV Sergey Ivanovich. USE In PROVING ON CRIMINAL CASES of the INFORMATION PRESENTED In electronic form. The DISSERTATION on competition of a scientific degree of the master of laws. Nizhni Novgorod - 2016. 2016

More on topic § 2. Concept and essence of criminal procedure proving taking into account features of representation of the information on the facts in electronic form:

  1. § 3. Representation, research and an estimation as proofs of the information presented in electronic form, by consideration by criminal case court in essence
  2. § 2. Use of the information presented in electronic form, during criminal procedure proving at a stage of preliminary investigation [300 [301]
  3. § 3. General-theoretical bases of use in criminally Remedial proving of the information on the facts in electronic form
  4. the Technique of definition of efficiency of punishment under criminal law in the form of restriction of freedom taking into account the business factors accompanying application of electronic means of tracking for condemned
  5. § 2. Features and properties of the criminal procedure form of information technologies in criminal trial of the Russian Federation
  6. KUVYCHKOV Sergey Ivanovich. USE In PROVING ON CRIMINAL CASES of the INFORMATION PRESENTED In electronic form. The DISSERTATION on competition of a scientific degree of the master of laws. Nizhni Novgorod - 2016, 2016
  7. Chapter 1 the CRIMINAL PROCEDURE FORM of INFORMATION TECHNOLOGIES: CONCEPT, KINDS And PROPERTIES
  8. § 1. Use of the information presented in electronic form, for revealing and disclosing of crimes in a stage of excitation of criminal case
  9. § 2. The Criminal procedure form of the information technologies used for collecting, check and evaluation of evidence
  10. § 1. The Criminal procedure form of the information technologies used for the organisation of activity of officials and bodies, carrying out the criminal trial
  11. § 1.5. Features of legal regulation of procedure of a recognition and execution of the decision of the international investment arbitration taking into account its legal nature
  12. § 3. The Criminal procedure form of the information technologies used for the control of activity of officials and bodies, carrying out the criminal trial
  13. CHAPTER 2 OF FEATURE OF TREATMENT OF THE FACTS AND PROVING IN THE INTERNATIONAL CIVIL PROCEDURE
  14. 2.1. Features of a legal status of information intermediaries and their role in the conclusion and execution of contracts in the electronic form
  15. the form of representation of electronic proofs
  16. § 4. The elements of the criminal procedure form directed on maintenance of safety of information technologies
  17. Chapter 2. Problems of use of the information presented in electronic form, as proofs at various stages of criminal trial
  18. § 1. Concept of proving and subjects of proving in criminal trial Socialist Republic Vietnam and the Russian Federation
  19. § 3. Features of the criminal procedure form of a stage of preparation of proceeding with participation of minors
  20. value of the electronic information and electronic data carriers in system of proofs on criminal case