The main objective of the research was a comprehensive study of the legal nature of digital evidence, their juridical significant features, as well as the formation of recommendations on their implementation in the criminal justice system of the Kyrgyz Republic in accordance with the Cyber Security Strategy.
To achieve this goal, the following tasks were set within the framework of this research:
1.studying the theoretical foundations of the concept and the legal nature of digital evidence, determining the legally significant features of digital evidence and generally recognized standards for their use;
2.analysis of the current criminal procedure legislation and law enforcement practice in criminal cases on the use of digital evidence;
3. studying the features of applying the special knowledge of a specialist and expert to work with digital evidence;
4. consideration of legal issues of integrating digital evidence into the criminal procedural legislation of the Kyrgyz Republic.
Within each of the above tasks, we provided a summary of key findings and conclusions, as well as recommendations for further consideration and implementation. As a practical result of the study, we have developed draft legal documents that are proposed for consideration by the relevant state bodies of the Kyrgyz Republic.
Based on the results of this study, we can state:
- Digital evidence is a legal term and characterizes the procedural and legal status of digital information.
- Digital information is a form of materialization of a person’s digital footprint in cyberspace.
- Digital evidence has a number of legally significant features (digital essence, abstractness, mediation, interpretability, fragility, unlimited copying, variety of forms, cross-border, qualified treatment).
- Internationally recognized standards for the use of digital evidence in the justice system include:
- Ensuring the integrity and authenticity of digital evidence;
- Documenting the process of working with digital evidence;
- Support of specialists;
- Qualification of bodies of inquiry;
- Legal consistency.
In general, it should be noted that the technical means used in the justice system should serve the principles of individualization and personal nature of criminal liability and punishment (Articles 7 and 8 of the Criminal Code of the Kyrgyz Republic), not restrict a person’s freedom, but assist in proving circumstances of importance for the case, and the administration of justice within a particular case.
The integration of digital evidence into the criminal procedure legislation of the Kyrgyz Republic should be accompanied by the solution of a number of fundamental issues:
- The Code of Criminal Procedure should define the place of digital evidence in the system of sources of evidence in a criminal case.
- It is necessary to preserve and, in some cases, expand the effect of constitutional and legal guarantees of the inviolability of privacy in the course of criminal proceedings, including by strengthening the status of the investigating judge in matters of judicial control over the investigation.
- It is necessary to legally correctly define the legal status, rights and obligations, as well as acceptable ways of communication with digital information providers, including those outside the jurisdiction of Kyrgyzstan.
- Existing criteria for determining the admissibility of evidence should be supplemented by new criteria that apply exclusively to digital evidence.
Digital evidence can be introduced into the criminal procedure legislation of the Kyrgyz Republic through the adoption of 2 regulatory legal acts:
- Law on Amendments and Additions to the Code of Criminal Procedure of the Kyrgyz Republic (creates a legal framework for the use of digital evidence)
- Rules for the collection, seizure, storage and evaluation of digital evidence (govern the step-by-step actions of the persons involved in the collection, storage and examination of digital evidence).
By: Talant Sultanov, Zhanarbek Murakanov, Aiperi Bozoeva, Zhamilia Akmatbaeva, Nurbek Arzymbaev
