Novels of the new Criminal Procedure Code of Ukraine regarding IT
In November 2012, a new Criminal Procedure Code entered into force in Ukraine (the Code of Criminal Procedure describes the procedure for bringing a person to justice for a crime - from pre-trial investigation to the execution of a court decision).
In this code there are a number of new articles that regulate and clarify such moments as the removal of information from transport telecommunication networks and electronic information networks by law enforcement agencies. This legislative act must meet the requirements of modernity regarding interaction with the IT world, since all such legal relations were previously governed by a code of 1960, where they used the concepts of "telegraph correspondence" in particular. I think this information will be useful for both providers and ordinary users, whom these innovations can touch.
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I create this topic more to discuss innovations with users in the comments and I am not a professional interpreter. For me there are more questions than answers. Of course, court and investigative practice will give answers, but this topic, I think, will be useful for review and forecasts.
From myself I will explain that all these actions are secret investigative actions (the person in respect of which they are held should not be aware of their conduct). That is, they can only be used if they are suspected / accused of committing a serious / especially serious crime and for their conduct it is necessary to obtain the definition of an investigative judge.
The investigative judge is a new figure in the Ukrainian criminal process - this is a special judge who is appointed to “supervise” the investigation. That is, the investigator must coordinate the following investigative actions with the prosecutor and then submit the petition to the investigating judge.
1. As you can see, law enforcement agencies can interfere and remove information from your communication channels, for example, the Internet service provider’s networks going to your home. Moreover, as with the provider itself, and bypassing it. All categories are spelled out quite clearly.
2. Interestingly, by the end equipment is meant the equipment of the user, or the entity performing the removal of information? And how, in this case, excuse will work in practice: “this is my Wi-Fi router, its mac-address, but it was not me, someone hacked the router” The identification data will be the ip-address, mac-address or and other?
3. No matter how strange the sentence was constructed, but the translation is subjectively correct :)
4. The provider must assist the law enforcement authorities and in this case, the question that had previously worried many is immediately described: “Is it possible to notify the user that the authorities are interested in them”. No - it is not possible (this is how my old German teacher answered).
1. I wonder what is meant by the information electronic system. Site, server, computer user, database? Can this information system be an email account, a social network?
2. Apparently in this case means the entire open segment of the Internet. And under logical protection - any explicit protection mechanism established by the user. Apparently hidden from everyone, including from logged-in users, the photo on Facebook is also protected.
3. In this case, everything is more and less clear. Surely these will be domain names, ip-addresses and so on.
That is, now a mechanism is specifically specified by which they can calculate your location, the route of movement, without at the same time listening to and removing information (SMS, Internet). Here IMEI numbers, SIM-card identifiers to help. You'll see that the sim card will be pre-made with only passports to sell.
PS I did the translation myself, because I did not find a more or less intelligible version in Russian. I will be glad to comments and comments! The full text in the original language can be found here .
In this code there are a number of new articles that regulate and clarify such moments as the removal of information from transport telecommunication networks and electronic information networks by law enforcement agencies. This legislative act must meet the requirements of modernity regarding interaction with the IT world, since all such legal relations were previously governed by a code of 1960, where they used the concepts of "telegraph correspondence" in particular. I think this information will be useful for both providers and ordinary users, whom these innovations can touch.
')
I create this topic more to discuss innovations with users in the comments and I am not a professional interpreter. For me there are more questions than answers. Of course, court and investigative practice will give answers, but this topic, I think, will be useful for review and forecasts.
From myself I will explain that all these actions are secret investigative actions (the person in respect of which they are held should not be aware of their conduct). That is, they can only be used if they are suspected / accused of committing a serious / especially serious crime and for their conduct it is necessary to obtain the definition of an investigative judge.
The investigative judge is a new figure in the Ukrainian criminal process - this is a special judge who is appointed to “supervise” the investigation. That is, the investigator must coordinate the following investigative actions with the prosecutor and then submit the petition to the investigating judge.
Article 263. Removal of information from transport telecommunication networks
1. Removal of information from transport telecommunication networks (networks providing the transmission of signs, signals, written text, images and sounds or messages of any kind between telecommunication access networks connected to it) is a kind of interference with personal communication , which is carried out without the knowledge of the individuals , using means telecommunication for transmitting the information on the basis of the decision investigating judge if it can hold the clarification of importance for the criminal n oizvodstva.
2. In this case, the decision of the investigative judge on the permission to interfere in private communication must additionally indicate the identification features that will uniquely identify the surveillance subscriber, the transport telecommunications network, the final equipment on which the personal communication can be interfered with ...
3. Removal of information from transport telecommunication networks consists in carrying out with the use of appropriate technical means of observation, selection and recording of information content, which is transmitted by a person and is important for pre-trial investigation , as well as receiving, converting and fixing various types of signals transmitted via communication channels.
4. Removal of information from transport telecommunication networks is assigned to authorized units of the internal affairs bodies and security authorities. Managers and employees of telecommunications operators are obliged to assist in taking actions to remove information from transport telecommunication networks, take measures regarding non-disclosure of the fact of such actions and the information received, and store it in unchanged form.
1. As you can see, law enforcement agencies can interfere and remove information from your communication channels, for example, the Internet service provider’s networks going to your home. Moreover, as with the provider itself, and bypassing it. All categories are spelled out quite clearly.
2. Interestingly, by the end equipment is meant the equipment of the user, or the entity performing the removal of information? And how, in this case, excuse will work in practice: “this is my Wi-Fi router, its mac-address, but it was not me, someone hacked the router” The identification data will be the ip-address, mac-address or and other?
3. No matter how strange the sentence was constructed, but the translation is subjectively correct :)
4. The provider must assist the law enforcement authorities and in this case, the question that had previously worried many is immediately described: “Is it possible to notify the user that the authorities are interested in them”. No - it is not possible (this is how my old German teacher answered).
Article 264. Removal of information from electronic information systems
1. Search, identification and fixation of information contained in the electronic information system or parts thereof, access to the electronic information system or part thereof, as well as receipt of such information without the knowledge of its owner, holder or holder may be based on the decision of the investigating judge, if available information about the availability of information in the electronic information system or its part, which is important for a certain pre-trial investigation.
2. Does not require the permission of the investigating judge to obtain information from electronic information systems or its part, access to which is not limited to its owner, owner or holder, or is not associated with overcoming the logical defense system.
3. In the decision of the investigative judge on the permission to interfere in personal communication in this case, the identification signs of an electronic information system in which interventions in personal communication can be performed should be additionally indicated
1. I wonder what is meant by the information electronic system. Site, server, computer user, database? Can this information system be an email account, a social network?
2. Apparently in this case means the entire open segment of the Internet. And under logical protection - any explicit protection mechanism established by the user. Apparently hidden from everyone, including from logged-in users, the photo on Facebook is also protected.
3. In this case, everything is more and less clear. Surely these will be domain names, ip-addresses and so on.
Article 268. Establishment of the location of radio electronic equipment
1. Establishing the location of radio electronic means is an unofficial investigative (investigative) action, which consists in applying technical means to localize the location of electronic equipment, including the mobile terminal of communication systems and other radio-emitting devices activated in the networks of mobile (mobile) operators, without disclosing the content of messages transmitted if, as a result of its conduct, it is possible to establish circumstances relevant to criminal proceedings.
2. The determination of the location of the radio electronic means shall be carried out on the basis of the decision of the investigating judge taken in the manner provided for in Articles 246, 248-250 of this Code.
3. In this case, the decision of the investigative judge on the permission to establish the location of the radio electronic means should additionally indicate identification features that will uniquely identify the surveillance subscriber, the transport telecommunications network, and the final equipment.
4. The determination of the location of the radio electronic means before the ruling of the investigating judge can be initiated on the basis of the decision of the investigator, the prosecutor only in the case provided for in the first part of Article 250 of this Code.
That is, now a mechanism is specifically specified by which they can calculate your location, the route of movement, without at the same time listening to and removing information (SMS, Internet). Here IMEI numbers, SIM-card identifiers to help. You'll see that the sim card will be pre-made with only passports to sell.
Earlier, in the Ukrainian edition of the Criminal Procedure Code of 1960, similar norms sounded archaic:
Article 187. Correction of correspondence and removal of information from communication channels
The arrest of correspondence and the removal of information from communication channels can be applied only if there are sufficient grounds to believe that the letters, telegraph and other correspondence of the suspect or the accused to other persons or other persons to the suspect or the accused, as well as the information they exchange with the help of communications, contains data on the crime committed or documents and objects of evidentiary value, and if it is impossible to obtain these data by other means.
Correspondence that may be seized includes all kinds of letters, parcels, parcels, postal containers, translations, telegrams, radiograms, etc ...
The arrest of correspondence and the removal of information from communication channels to prevent a crime can be applied to the initiation of criminal proceedings.
If there are grounds provided for in the first part of this article, the investigator, in consultation with the prosecutor, appeals to the chairperson of the appellate court at the place of the investigation about the imposition of arrest on correspondence or the removal of information from communication channels. The chairman of the court or his deputy considers the submission, examines the case materials, if necessary, hears the investigator’s opinion, hears the opinion of the prosecutor, and then, depending on the grounds for making this decision, decides whether to arrest the correspondence or withdraw information from the communication channels or to refuse it. The ruling is not appealable.
The decree on the imposition of an arrest on correspondence indicates the criminal case and the grounds on which this investigative action will be carried out, the last name, first name and patronymic of the person whose correspondence is to be delayed, the exact address of this person, the types of arrest, post arrest during which the arrest persists, the name of the communication institution to which the obligation to detain correspondence is assigned and to notify the investigator accordingly.
The decision to remove information from the communication channels indicates the criminal case and the grounds on which this investigative action will be carried out, the name, surname and patronymic of the person whose information channels have the information, the exact address of that person, the types of these channels, the period, which information is being filmed, the name of the institution to which the obligation is imposed to remove the information and to inform the investigator about it.
The decision on the imposition of an arrest on correspondence or the removal of information from communication channels shall be sent by the investigator to the head of the relevant institution for which it is mandatory.
The head of the relevant institution delays correspondence or removes information from the communication channels and notifies the investigator about it within a day.
The arrest imposed on the correspondence is canceled, and the removal of information from the communication channels is terminated upon the expiration of the period established for the execution of these investigative actions by a decision of the judge. The investigator cancels the arrest imposed on the correspondence, or terminates the removal of information from the communication channels when the implementation of these measures is no longer necessary, when closing the criminal case or transferring it to the prosecutor in the manner provided for in Article 255 of this Code.
The decision is made in a mode that ensures the non-disclosure of data of pre-trial investigation or operational investigative activities.
Article 187-1. Inspection and seizure of correspondence and research information, removed from the communication channels
The review of correspondence is carried out by court decision in the institution of communication with the participation of witnesses from among the employees of this institution, and if necessary with the participation of a specialist. In the presence of these persons, the investigator opens and examines the detained correspondence.
In the event of the discovery of documents or items of evidentiary value, the investigator shall seize the corresponding correspondence or limit himself to making copies of the relevant items. In the absence of documents or items of evidentiary value, the investigator gives instructions to hand over the examined correspondence or to detain him until a certain time.
The investigator shall draw up a report on each case of inspection, seizure or detention of correspondence. The protocol should indicate exactly which items were inspected, what was removed from them and should be delivered to the addressee or temporarily delayed, from which items were copied.
The study of information taken from communication channels, where necessary, is carried out with the participation of a specialist. The investigator listens or in another appropriate way examines the content of the captured information, what the protocol is about. When data with evidentiary value is detected in the information, the relevant part of the record is reproduced in the protocol, after which the investigator by his decision recognizes the carrier of the removed information as evidence and appends it to the case.
Article 187. Correction of correspondence and removal of information from communication channels
The arrest of correspondence and the removal of information from communication channels can be applied only if there are sufficient grounds to believe that the letters, telegraph and other correspondence of the suspect or the accused to other persons or other persons to the suspect or the accused, as well as the information they exchange with the help of communications, contains data on the crime committed or documents and objects of evidentiary value, and if it is impossible to obtain these data by other means.
Correspondence that may be seized includes all kinds of letters, parcels, parcels, postal containers, translations, telegrams, radiograms, etc ...
The arrest of correspondence and the removal of information from communication channels to prevent a crime can be applied to the initiation of criminal proceedings.
If there are grounds provided for in the first part of this article, the investigator, in consultation with the prosecutor, appeals to the chairperson of the appellate court at the place of the investigation about the imposition of arrest on correspondence or the removal of information from communication channels. The chairman of the court or his deputy considers the submission, examines the case materials, if necessary, hears the investigator’s opinion, hears the opinion of the prosecutor, and then, depending on the grounds for making this decision, decides whether to arrest the correspondence or withdraw information from the communication channels or to refuse it. The ruling is not appealable.
The decree on the imposition of an arrest on correspondence indicates the criminal case and the grounds on which this investigative action will be carried out, the last name, first name and patronymic of the person whose correspondence is to be delayed, the exact address of this person, the types of arrest, post arrest during which the arrest persists, the name of the communication institution to which the obligation to detain correspondence is assigned and to notify the investigator accordingly.
The decision to remove information from the communication channels indicates the criminal case and the grounds on which this investigative action will be carried out, the name, surname and patronymic of the person whose information channels have the information, the exact address of that person, the types of these channels, the period, which information is being filmed, the name of the institution to which the obligation is imposed to remove the information and to inform the investigator about it.
The decision on the imposition of an arrest on correspondence or the removal of information from communication channels shall be sent by the investigator to the head of the relevant institution for which it is mandatory.
The head of the relevant institution delays correspondence or removes information from the communication channels and notifies the investigator about it within a day.
The arrest imposed on the correspondence is canceled, and the removal of information from the communication channels is terminated upon the expiration of the period established for the execution of these investigative actions by a decision of the judge. The investigator cancels the arrest imposed on the correspondence, or terminates the removal of information from the communication channels when the implementation of these measures is no longer necessary, when closing the criminal case or transferring it to the prosecutor in the manner provided for in Article 255 of this Code.
The decision is made in a mode that ensures the non-disclosure of data of pre-trial investigation or operational investigative activities.
Article 187-1. Inspection and seizure of correspondence and research information, removed from the communication channels
The review of correspondence is carried out by court decision in the institution of communication with the participation of witnesses from among the employees of this institution, and if necessary with the participation of a specialist. In the presence of these persons, the investigator opens and examines the detained correspondence.
In the event of the discovery of documents or items of evidentiary value, the investigator shall seize the corresponding correspondence or limit himself to making copies of the relevant items. In the absence of documents or items of evidentiary value, the investigator gives instructions to hand over the examined correspondence or to detain him until a certain time.
The investigator shall draw up a report on each case of inspection, seizure or detention of correspondence. The protocol should indicate exactly which items were inspected, what was removed from them and should be delivered to the addressee or temporarily delayed, from which items were copied.
The study of information taken from communication channels, where necessary, is carried out with the participation of a specialist. The investigator listens or in another appropriate way examines the content of the captured information, what the protocol is about. When data with evidentiary value is detected in the information, the relevant part of the record is reproduced in the protocol, after which the investigator by his decision recognizes the carrier of the removed information as evidence and appends it to the case.
PS I did the translation myself, because I did not find a more or less intelligible version in Russian. I will be glad to comments and comments! The full text in the original language can be found here .
Source: https://habr.com/ru/post/284802/
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