Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185Depósito legal pp
197402ZU34
ppi 201502ZU4645
Vol.39 N° 68
Enero
Junio
2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
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de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
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Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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gra fía So cio Eco nó mi ca de Ve ne zue la de RE DIN SE, In ter na tio nal Bi blio graphy of
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Vol. 39, Nº 68 (Enero - Junio) 2021, 844-865
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 15/09/2020 Aceptado el 26/12/2020
Modern methods of computer-related
fraud: legal characteristics
and qualication
DOI: https://doi.org/10.46398/cuestpol.3968.55
Olga Kryshevych *
Igor Andrushchenko **
Olexandr Striltsiv ***
Yuriy Pyvovar ****
Olena Rivchachenko *****
Abstract
Due to the spread of new methods of committing fraudulent
actions using electronic devices, the problem arose to provide you
with adequate characteristics of criminal law for the development
of measures leading to counteracting such crimes. The objective
of the article was to identify common methods in Ukraine of committing
fraud using computers, to assess the characteristics of criminal law that
these crimes have, and, in turn, to determine measures to counter them.
Methodologically, this is a documentary investigation. The scientic
novelty of the study’s ndings was to identify methods of performing
fraudulent actions using electronic computers that will improve the legal
qualication of crimes and affect the prosecution of persons guilty of
committing such illegal actions. Measures to prevent such criminal offences
were also developed. The results of the study help improve the work of
law enforcement agencies in Ukraine, in determining recurrent methods
of committing fraudulent actions using electronic means and their proper
qualication, providing an opportunity to prosecute those who commit such
illegal actions and develop ways for cybercrime research and prevention in
general.
* PhD in Law, Associate Professor, National Academy of Internal Affairs, Professor of the Criminal
Law Department, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-6136-8106. Email:
kryshevycholga@i.ua
** PhD in Law, Associate Professor, National Academy of Internal Affairs, Economic Security and
Financial Investigations Department, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-2988-
7579. Email: andrushchenko2000@i.ua
*** PhD in Law, Senior Researcher, Anti-Corruption Commissioner, National Academy of Internal Affairs,
Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-8324-3053. Email: striltsivolexandr@i.ua
**** PhD in Law, Professor, National Aviation University, Head of the Constitutional and Administrative Law
Department, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0001-8258-7930. Email: pyvovary@gmail.
com
***** PhD in Law, National Academy of Internal Affairs, Senior Instructor of the Juridical Psychology
Department, Kyiv, Ukraine. ORCID ID: https://orcid.org/0000-0002-1817-4223. Email:
rivchachenkoolena@i.ua
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Keywords: electronic fraud; cybercrime; abuse of trust; legal
qualication; criminal law in Ukraine.
Métodos modernos de fraude relacionado con la
informática: características jurídicas y cualicación
Resumen
Debido a la propagación de nuevos métodos de cometer acciones
fraudulentas utilizando dispositivos electrónicos, surgió el problema
de proporcionarle características adecuadas del derecho penal para el
desarrollo de medidas conducentes a contrarrestar este tipo de delitos. El
objetivo del artículo fue determinar los métodos comunes en Ucrania de
cometer fraude utilizando computadoras, valorar las características del
derecho penal que tienen estos delitos y, a su vez, determinar las medidas
para contrarrestarlos. En lo metodológico se trata de una investigación
documental. La novedad cientíca de las conclusiones del estudio fue
determinar los métodos de realización de acciones fraudulentas utilizando
ordenadores electrónicos que mejorarán la cualicación jurídica de los
delitos y afectarán al enjuiciamiento de las personas culpables de cometer
tales acciones ilegales. También se desarrollaron las medidas de prevención
de tales infracciones penales. Los resultados del estudio ayudan a mejorar
el trabajo de los organismos encargados de hacer cumplir la ley en Ucrania,
en la determinación de los métodos recurrentes de cometer acciones
fraudulentas utilizando medios electrónicos y su cualicación adecuada,
lo que proporciona la oportunidad de procesar a aquellas personas que
cometen tales acciones ilegales y desarrollar formas para la investigación y
prevención de la ciberdelincuencia en general.
Palabras clave: fraude electrónico; delito informático; abuso de
conanza; calicación legal; derecho penal en Ucrania.
Introduction
The forecasts for further dependence of the vital functions of the
Ukraine’s infrastructure on the processes of its involvement into
computerized environment and its entry into the unied information
space are quite realistic. Modern society is an information technologies-
oriented society based on the daily use of computers, communication
networks, mobile means of communication and other technical means.
Yet the information space has become a place and at the same time a
direct instrument of criminal offences, as it does not require personal
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Olga Kryshevych, Igor Andrushchenko, Olexandr Striltsiv, Yuriy Pyvovar y Olena Rivchachenko
Modern methods of computer-related fraud: legal characteristics and qualication
contact with a potential victim, and the main tool of the offender is only a
computer and access to information and communication systems, where
he/she gets access to databases, bank accounts or automated management
systems with the help of illegal technical means. Thus, the development
of information technologies, increasing production of technical means and
the scope of computer technology have given rise to new types of socially
dangerous actions in which computer information is illegally used or
it itself becomes the object of encroachment, the application of criminal
law in the eld of ghting cybercrime in general and certain criminal
offences, namely computer-related fraud, the Internet. Thus, today there
is a problem of providing criminal law characteristics for the reported new
ways of computer-related fraud in Ukraine, which indicates the importance
of this article.
1. The literature review and research methods
Scientic debates on fraud committed with the use of electronic
computers indicate the peculiarity of the disposition of Part 3 of Article
190 of the Criminal Code of Ukraine (2001). One of the rst attempts to
provide criminal characteristics of computer-related fraud in Ukraine
were suggested by Muzyka and Azarov (2005) in the textbook “Legislation
of Ukraine on Criminal Liability for “Computer” Crimes: Scientic and
Practical Commentary and Ways to Improving” and later on by Azarov
(2007) in the book “Crimes in the Field of Computer Information (criminal
law research)”. At the same time, the author only outlined the general issues
of criminal law characteristics of such types of fraud.
Revealing the features of legal characteristics of crimes against property
committed with the use of computer technology, M. Karchevsky (2012)
focuses on only one type of fraud committed with the use of electronic
computers, namely via special Internet resources, designed for posting
retail information either of goods or services (online auctions, online stores,
etc.).
A. Vasyliev and D. Pashnev (2013) in their article “Сharacteristics of
the Qualication of Crimes in Computerized Environment, Computer
Systems and Networks and Telecommunication Networks” revealed only
some features of certain types of fraud committed via information and
telecommunication systems, and cases in which additional criminal law
characteristics for such crimes are required. However, they did not take
into account the new methods of fraud committed with the use of electronic
computing. A similar thorough study is that of Dudorov (2014), in which
he also revealed only the problems of qualication of fraud committed via
information and telecommunication systems.
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In turn, Shapochka (2015) in the article “On the Concept of Fraud
Committed through the Use of Computer Networks (Cyber fraud)”
reveals only the concept of cyber fraud, without providing criminal law
characteristics of this phenomenon. Shevchenko and Shulyak (2018)
studied the problem of putting apart computer-related fraud from other
types of crimes.
Taking into account the specics of the topic, purpose and objectives
of the article, a comparative legal method was applied, which allowed
to analyze the criminal law of the United States, Great Britain, France,
Germany, the Kingdom of the Netherlands, the Republic of Belarus in
part of criminal liability for computer-related property offences and also
most common methods of commission of such criminal offences in the
above-mentioned countries. The method of system analysis provided an
opportunity to analyze the methods of computer-related fraud researched
in scientic publications, which allowed us to summarize their elements.
The use of formal-logical and system-structural methods allowed us to
generalize certain methods of fraud committed with the use of electronic
computers and provide for their criminal law characteristics. Basing on
simulation, preventive measures as to these types of fraud were determined.
To verify the scientic provisions suggested by the researchers, we
conducted a survey based on questionnaire and further interview of 30
employees of the Department of Cyber police of the National Police of
Ukraine, who are directly involved in the investigation of computer-related
fraud.
The survey was conducted among respondents from different regions
who studied at the National Academy of Internal Affairs (Ukraine) on the
basis of pre-compiled questionnaire. The questionnaire included questions
about the methods of committing fraud using electronic computers already
known to the authors of the article and gave the opportunity for law
enforcement ofcers to inform about the most common in Ukraine, in their
opinion, new types of these criminal offences, problems that arise during
the investigation of such offences and suggest measures to counter them.
In particular, during the survey, respondents noted that today the number
of new types of fraud using electronic computers is growing signicantly.
As a result, during the criminal proceedings, problematic issues regarding
the proper qualication of such new types of fraud arise. Respondents
focused on the problem of dening the concept of electronic computing,
because modern technologies in manufacturing new types of smartphones
are blurring the difference between them and computers, which affects the
criminal law characteristics of certain types of crimes and helped determine
the directions for combating these offences.
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Olga Kryshevych, Igor Andrushchenko, Olexandr Striltsiv, Yuriy Pyvovar y Olena Rivchachenko
Modern methods of computer-related fraud: legal characteristics and qualication
2. The purpose of the article
The purpose of the article is to determine the criminal aspects of fraud
committed with the use of electronic computers to further improving the
law enforcement in combating this criminal offence. To achieve this goal,
the following tasks were formulated:
• to analyze the existing in Ukraine and foreign countries methods of
committing fraud with the use of electronic computers.
• to provide the existing methods of fraud committed with the use of
electronic computers with criminal law characteristics.
• to suggest the means of responding to new threats of cybercrime
and develop ways to implement them.
3. Object and subject of the research
The object of the study is public relations that arise during the detection
and investigation of computer-related fraud in Ukraine, as provided for in
Part 3 of Article 190 of the Criminal Code of Ukraine “Fraud”. The subject
of the study is to provide, on the basis of analysis of existing regulations and
the results of a survey based on questionnaire of specialists involved from
the Department of Cyber police of the National Police of Ukraine about
the methods of computer-related fraud, their criminal characteristics and
outline directions for combating such types of criminal offences.
4. Results and discussion:
4.1 The concept of cyber fraud
The popularity of the Internet is quite natural, as the user has the
opportunity: round-the-clock access to a signicant amount of information;
fast exchange of information with other users; conducting banking, trading,
stock exchange transactions from wherever you are at a convenient time
and much more. What exactly is the global computer information network
the Internet? It is a system of computers that are interconnected using TCP/
IP protocols and have unique identication numbers (domain names). The
Internet is a perfect tool in the hands of fraudsters due to the huge audience
of users and the opportunity to remain anonymous. The concept of cyber
fraud is covered by Part 3 of Article 190 of the Criminal Code of Ukraine
(Azarov, et al., 2018), according to which it is a large-scale fraud or fraud
committed via illegal transactions using electronic computers.
Fraud committed through illegal transactions using electronic computers
occurs when such an operation is a means of committing such criminal
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offence as a result of vishing (telephone fraud with the intent of luring bank
card details and transferring funds to the cards of fraudsters, for example,
by calling on behalf of mobile operator to ask citizens for personal data for
the unauthorized issuance of duplicate SIM cards). And having obtained
the information, fraudsters issued quick loans on these bank details and
misappropriated the money from the accounts of Ukrainians, and as a result
of phishing (luring of condential data - passwords, bank card numbers,
PIN-codes), fraud with ATMs: data compromising (skimming and ICS-
dropping), cash trapping.
Agreeing with V. Finageev (2016) we would like to note that the methods
of committing criminal offences can be differentiated into three main
groups: 1) methods of illegal access to bank accounts, related to the payments
by payment orders; 2) methods of committing criminal offences related to
illegal access to bank accounts and use of transactions in banking sphere,
especially in part of payment cards; 3) methods of committing criminal
offences related to the use of other means of access to bank accounts.
These include, for example, inputting false information into the banking
institution’s automated system; placing a bogus message on an electronic
bulletin board or online auction; unauthorized interference with the
on-board computer of the vehicle in order to mislead the performance.
Varieties of fraud have the following features: sending an unauthorized
by the legal cardholder request to make a payment and using the existing
payment system and established rules for automated processing of
requests of legal cardholders, the attacker spoofs the banking institution
(issuing bank) about the need to fulll the obligations under the agreement
concluded between the bank and the authorised cardholder; as a result
of such misleading, the issuing bank unreasonably debits non-cash funds
from the account of the authorised cardholder, which leads to causing the
latter losses in the form of reducing the amount of non-cash funds on the
card account; the actions of the perpetrator in initiating the transfer of non-
cash funds and the following socially dangerous consequences are causally
related. Misleading is the dening circumstance that distinguishes fraud
from other mercenary crimes against property.
Socially dangerous encroachments on property, which are committed
with the use of payment cards or their details and which, in the end, lead to
unauthorized transfer of funds from accounts, are grounds for classifying
them not as theft (Criminal Code of Ukraine, 2001; Article 185), but as
fraud (according to Article 190 of the Criminal Code). For example, a bank
employee, when processing documents for issuing consumer loans to
purchase goods, having access to an automated banking system, used their
data and opened current accounts in the name of her customers with set
credit limits. She activated instant credit cards on open accounts, with the
help of which she withdrew cash through self-service ATMs. However, we
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Olga Kryshevych, Igor Andrushchenko, Olexandr Striltsiv, Yuriy Pyvovar y Olena Rivchachenko
Modern methods of computer-related fraud: legal characteristics and qualication
believe that all other types of such encroachments (using an ATM, payment
terminal, Internet) should not be considered as a crime against property
of only one kind - fraud. Thus, illegal operations with use of electronic
computer equipment should be distinguished from cases of use of such
equipment as a tool of commission of usual (unskilled) fraud.
For example, the use in fraud of a counterfeit document, made with the
help of specialized software, should not be considered as fraud committed
through an illegal transaction using electronic computing equipment. In
other words, if certain technique makes possible operations that can be
performed with the help of another technique (typing, document issuing,
etc.), then the qualifying feature of fraud is absent. This type of fraud may
require additional qualications under Articles 361-363¹ of the Criminal
Code of Ukraine. In particular, additional qualication under Article
361 of the Criminal Code of Ukraine is required for fraud committed by
initiating an unauthorized transaction in the payment system on behalf of
the victim, in cases where the details necessary for the transaction were
obtained through unauthorized interference with the computer network
(for example, “Hacking” of the email box). However, there are no signs of
criminal offence under Articles 361-363¹ of the Criminal Code of Ukraine,
if the perpetrator acts without illegal distorting or suppressing computer
data, without causing other damage to the operation of computer facilities,
uses them on a regular basis. Examples of such acts are fraud committed
using the information system of an online auction or electronic bulletin
board, withdrawal of cash from an ATM using a stolen payment card, and
so on.
Procuring of another person’s property by deception in the form of:
registration on the website of the online auction providing it with inaccurate
information about oneself and further placement of advertisements about
selling goods or providing services that actually will not be delivered or
provided for to the buyer; offers to sell non-existent goods or services using
a page created on a social network; organization and maintenance of own
online store, which spreads inaccurate information, etc.
In countries such as the United States, the United Kingdom, France,
and Germany, the legislator considers computer crimes to be actions in
which the computer is the object or instrument of encroachment (theft of
computers or their components). In other countries the Netherlands, the
Republic of Belarus, computer crimes comprise a separate group of crimes -
illegal actions in the eld of automated information processing with the main
classifying features: common methods, tools, objects of encroachment; the
subject of encroachment is information processed in computer system, and
the computer serves only as an instrument of encroachment. The national
legislation of Ukraine does not yet dene the concepts of “computer crime”,
“computer fraud”, “cybercrime”, “cyber fraud’. In Articles 163 and 190 of
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the Criminal Code of Ukraine (Azarov, et al., 2018), as well as in Section
XVI of the Criminal Code of Ukraine the terms “computer”, “electronic
computing equipment”, “electronic computer” is dened as one and the
same object of encroachment or instrument of committing a criminal
offence using the Internet and computer and telecommunication devices,
systems, or networks.
Thus, Article 163 of the Criminal Code of Ukraine criminalizes “violation
of privacy of correspondence, telephone conversations, telegraph or other
correspondence transmitted by means of communication or computer”,
i.e. the term “computer” is used without providing a meaningful denition.
At the same time, part 3 of Article 190 of the Criminal Code of Ukraine
which denes fraud as the one committed through illegal transactions
using electronic computers, does not provide a denition of this term
either. It should be noted that a cyber-system can be considered identical
to a computer system, the denition of which is given in the Convention
on Cybercrime (2001): “any device or a group of interconnected or related
devices, one or more of which, pursuant to a program, performs automatic
processing of data”.
Completely new opportunities based on the characteristics of email,
newsgroups and services provided by the World Wide Web are opening up
to fraudsters in the area of creating “nancial pyramids”, sham marriage
ofces, employment ofces, alleged service companies. In all these cases,
the new tools provide with a huge speed of interaction with potential victims
and anonymity of the scammer. Another type of fraud consists of modifying
the algorithms that determine the functioning of the system for processing
information about non-cash bank payments.
4.2 Electronic fraud with exchange rates
There are reported cases when the conversion rate has been changed.
While the currency is transferred to the bank’s clients at an undervalued
exchange rate, the difference is transferred to accounts controlled by
criminals. There is also a method based on rounding out the interest
charged on a deposit of the bank’s client when it is paid out, and the
difference between the due and accrued (rounded) interest is transferred to
the account of the offender. Such transactions, due to small amounts that
are being stolen, at rst may not be even detected by both clients and the
bank’s management. There emerged a new means of payment, the so-called
electronic cash, which accompanies new types of fraud, rst of all electronic
cash in the form of credit cards, which are used both to get traditional paper
money and to purchase goods and pay off for services with the aid of special
equipment. Virtual stores are actively using a kind of e-cash in the form of
electronic coins (cibercash) (Jakobsson et al.,2005).
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Olga Kryshevych, Igor Andrushchenko, Olexandr Striltsiv, Yuriy Pyvovar y Olena Rivchachenko
Modern methods of computer-related fraud: legal characteristics and qualication
4.3 The cyber fraud in social networks
Nowadays more and more types of fraud aimed at misappropriating
another person’s property are being invented, while information is the key
to gaining access to money, because people pay online much more often
than before, so more and more information about us enters the network.
Social networks like Facebook, Vkontakte, LinkedIn, Instagram, Swarm, as
well as programs for online communication like Skype, Viber, WhatsApp
have become extremely popular. On social networks, people provide
information about their place of work, date of birthday, contacts, post their
photos, and start making friends. For fraudsters, intelligence services and
law enforcement agencies, such information is really worthy. For example,
there has recently come into being a type of fraud in which attackers copy
all the information from a page on a social network, then launch subsequent
web page with the same name and photos and send messages to friends of
the person asking to borrow or transfer a certain amount of money.
Therefore, rst of all, it is necessary to post the information within
acceptable limits so that outsiders cannot nd out too much (for example,
phone number or postal address), or restrict access to sensitive user’s
information referring to the appropriate options in the settings. One should
know personally all “friends” in social networks, although the marketing
reality makes changes in the private character of our pages. Secondly, if you
receive a friend’s message the content of which seems to be strange, ask
him/her something that only your friend may know, so his/her answer can
make it clear that you are talking to a friend or a stranger. Fraudsters often
send messages through social networks and e-mail, the content of which
may look strange.
For example, it can be a message about winning of your e-mail in the
lottery. Then the scammers try to obtain your personal information referring
to the lottery conditions. Fraudsters can both invent non-existent lottery
companies and redirect you to legitimate ones. There is always something
strange about such messages, for instance, poor spelling, grammar or
stylistic errors, or mistakes in an email address that does not contain any
information about the sender of the message. If you do not voluntarily
provide information about yourself in an e-mail, fraudsters can obtain such
information by offering you to download certain programs or clicking on
links. In this case you should keep in mind your own informational security
and not respond to such offers/provocations.
The most popular methods facilitating fraud are computer viruses
(malware), deception of the user with the intent to fraudulently acquire
sensitive information from victim (for example, bank card details, etc.),
offers of high-paid work at home from unauthorized employers. As well
as online begging – the ads from charities, shelters, and parents asking for
nancial aid for the treatment of their sick children may appear online.
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Scammers can make up stories about illnesses by illustrating them with
photos of other people’s children, or create duplicate ads for real charities,
which are exact copies of the real ones, but with the bogus account details
for transferring money.
4.4 The fraud to using plastic cards
Despite the various methods of protection used during the issuing and
using plastic cards, there are numerous methods of fraud with them. In
this case, the role of fraudsters can be ‘played’ both by service personnel
involved in the processing of relevant nancial transactions, as well as by
outsiders at various stages of card usage. For example, abusing the trust of
people the scammer persuaded them to “protably” invest in e-commerce
and gullible citizens transferred money from their e-wallets or through
payment terminals “Web Money” to the fraudster’s credit cards. (They were
promised quick earnings with a solid interest after nancial transactions in
a virtual enterprise, but in fact people transferred money to the accounts of
one of the book-maker’s ofces).
Also, one more type of fraud with counterfeit credit cards is based on
the interception of information in the form of a pair of numbers - the credit
card number and its PIN-code.
This may happen either at the stage of sending out the cards to the
consumers, or at the moment of entering the PIN code in the trading
terminal or ATM, or at the moment of transmission of similar information
from the communication channels by the electronic terminal. Besides,
the credit card number and PIN may be stolen from the bank or service
organization. After the “stealing” of a credit card’s identication pair, as a
rule, a counterfeit plastic copy of the credit card is made and with its help
a “mysterious withdrawal from the account” is made. Another possibility
of “mysterious withdrawal from the account” is based on fraud of the
unscrupulous personnel performing nancial transactions of the client and
consists in adding to them non-existent expenditures.
The second group of plastic card fraud involves the use of a phantom
card. These frauds are based on the use of the uncovered algorithm to obtain
the PIN code from the credit card, the issuing of a non-existent plastic card,
followed by nancial transactions with it.
The third group consists of fraud with real credit cards. It comprises
fraud with stolen or lost credit cards, as well as various fraud committed
using special techniques. (Scammers open many bank accounts with debit
credit cards depositing a small amount of money on one of these credit
cards. Most banks allow overdraft on debit cards to attract customers, so
if the account is not closed in the bank, the money from the rst card is
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withdrawn entirely with overspending and transferred to the second card,
from which in its turn it is withdrawn and transferred to the third one, and
so on and so on. As a result of these operations a signicant amount of
money is accumulated).
The fourth group includes methods based on the use of bogus ATMs
and trading terminals (Scammers installed a bogus ATM, accepting actual
credit cards and intercepted PIN codes entered by credit cards holders.
Also, they stole cash that clients tried to deposit via this ATM to their bank
accounts. If people tried to get cash from this bogus ATM there appeared
a message that the ATM is not loaded with bills of the required value while
the neighboring ATMs were out of order) (Lysoded, 1999).
4.5 Problems to legal qualication of offenses committed
using a latest technologies
Fraud, which is committed using the latest technologies, is characterized
by a variety of forms and methods. However, part 3 of Article 190 of the
Criminal Code of Ukraine does not reect all possible ways of committing
fraud with the use of computer equipment, the Internet, mobile
communication, etc. In this respect it could be mentioned that telephone
fraud is not criminalized either, i.e. when a criminal uses a telephone
connection and a tool of gaining access to such connection with the intent
of committing fraud: unauthorized debiting of funds from the account of
a subscriber; illegal request to call on a certain phone number without
warning about debiting of money during such a call; illegal transactions
with topping up of mobile telephony subscribers’ accounts. SMS-phishing,
also known as SMiShing (from “SMS” and “phishing”), is becoming more
common. Scammers send messages that contain a link to a phishing site.
Entering it and entering his/her personal data, the victim in fact
transmits it to attackers. The message may also ask to call back to fraudsters
on a certain number to solve “problems that have arisen.” Phishing is a form
of Internet fraud that allows to fraudulently obtain valuable information by
spoong communications as if they came from a reliable source, and then
the information can be used to gain access to devices or networks. Targeted
phishing is a targeted phishing attack based on the victim’s personal
information to make the attack more successful. In general, there are many
types of “phishing”: Creating fake web links. International Domain Names
(IDNs) can be used to create confusingly similar domain names, allowing
to use non-ASCII symbols. Visual similarities between symbols in different
scenarios, called homoglyphs, are used to create domain names that can’t
be visually differentiated, and this misleads users to take one domain for
another. Voice and text phishing.
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To obtain account information, attackers use phone calls and text
messages. At rst they send messages to bank clients claiming that their
accounts have been blocked. Substitution of websites, forgery, and
redirection of messages (websites are vulnerable to cross-site scripting XSS)
are used by attackers to post their own content on another website. An XSS
attack can be used to intercept data entered on a compromised site (including
user’s name and password) that attackers will use later (Abroskiv, 2019).
Researchers distinguish other types of “phishing”, such as keyloggers and
screenloggers. Letters allegedly sent from the bank may notify users of the
need to call a certain number to resolve problems with their bank accounts.
This technique is called vishing (voice phishing). After calling the indicated
number, the user hears the instructions of the answering machine, which
suggests entering account number and PINNING code. In addition, the
Vishenries may call the victims using fake numbers and impersonating the
representatives of ofcial bodies (Sabadash, 2011).
There are also technically sophisticated methods based on connection to
communication channels, interception of keys that provide cryptographic
protection of information, and imitating the work of either an ATM
(through transferring the stolen money on the fraudster’s accounts), or
a bank (through conrming the correctness of cash payments from non-
existent accounts).
The use of credit cards on the Internet also provides wide opportunities
for fraud. The exchange of plaintext on the Internet (like ordering by
telephone), when all the information necessary for a purchase by credit
card (card number, name and address of the cardholder, card expiration
date) is transmitted openly, can be intercepted by special lters.
When exchanging encrypted messages, the sensitive information
cannot be intercepted during the transmission process, but it can, however,
be obtained from the seller’s or buyer’s server. Using clearing payment
systems, when making a purchase, the customer does not provide his
details to the seller, but instead provides his virtual name and credit card
number, and the store authorizes the credit card not in the bank but in the
clearing house. In fact, the system guarantees payment to the store, and
the client provides his data to the clearing house in any reliable way, for
example by mail.
The client’s money from the bank is deposited in the clearing house
in one of the acceptable ways (based on the client’s credit card details, a
transfer, or a check, etc.). While committing this type of fraud the scammer
may use software that allows the perpetrator (by nding random numbers,
passwords, random coincidence/selection) to obtain unauthorized access
to the information stored or processed in automated systems with the
purpose of misleading the automated system and impersonating oneself an
authorized person to perform legitimate operations.
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4.6 Means and object of electronic fraud
Thus, there are the following ways used by scammers to seize the funds
of authorized payment cardholders: technical devices that are installed on
the ATMs in order to seize the payment card or money; electronic devices
that allow to obtain the necessary information from the payment card
or from the ATM keyboard; infecting computers with viruses in order to
obtain information about payment cards (by forging or hacking sites, using
botnets and sending malicious spam); forgery of payment cards using
stolen information; telephone fraud (when criminals act on behalf of bank
employees and try to obtain the necessary information).
There are many types of fraud with payment cards and ATMs (phishing,
farming, tracing, skimming, trapping, phantom, shutter, shimming, etc.),
but all of them are aimed at stealing money, payment card or its details, such
as: card number; date of issue/expiration of the card; CVV2 code (three-
digit number on the back of the payment card, serves as a conrmation code
for transactions performed on the Internet or by phone); the client’s rst
and last name in Latin; PIN code. Besides, stolen information can be used
by criminals not only to forge a payment card or debiting money, but also
put up for sale on specialized sites or forums. In this case, the perpetrator
may inuence the processing of information, distort its content, or destroy,
set the necessary command to seize property or the right to it, adjust the
system so that it operates in a way that would ensure the perpetrator or his
accomplice procuring, without right, someone else’s property or right to it.
In this case, the essence of fraudulent deception remains unchanged.
The decisive role in dening fraudulent actions belongs to the means
through which it is committed - electronic computers. Thus, means of
electronic communication (computer technique) includes hardware and
software. Hardware includes: 1) computer (including server, personal
computer); 2) peripheral; 3) digital media which includes software (system,
application software, programming tool) and digital data. Software can be
considered both as part of a computer system and as a separate one, for
which a computer is an environment. As for the subject of ownership, which
consists of property or the right to it, after the fraud has been committed,
the fraudster becomes the owner of this property, or the fraudster gets the
right of ownership for the subject of property right. The subject of fraud
is identied with the subject of property relations, because the social
connection, the normal procedure for exercising property rights is violated.
Namely, the social connection in this relationship consists in the normal
functioning of computers, systems and computer and telecommunication
networks.
The subjects of this relationship are persons who use computers,
computer systems and computer and telecommunication networks in
their own interests, as well as persons who provide relevant services in this
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sphere. The objects of this relationship are computers, computer systems
and computer and telecommunication networks. Thus, when committing
a computer-related fraud, the encroachment is made not on the normal
functioning of electronic computers, computer systems and computer and
telecommunication networks, but on public property relations, money and
other valuables which are the purpose of misappropriation. The object of the
fraud in question may not be computers, computer systems and computer
networks and telecommunication networks.
4.7 Subject of electronic fraud
As for the subjects of these relations, such fraud can be committed
by any persons using computers, computer systems and computer
and telecommunication networks in their own interests, as well as by
persons who provide relevant services in this sphere. At the same time,
while committing such fraud, these persons perform legal operations
using electronic computers, without disrupting the normal functioning
of electronic computers. Thus, the use of electronic computers with the
purpose of misappropriation of someone’s property is criminalised under
Article 190 of the Criminal Code of Ukraine.
4.8 Remote banking services
Remote Banking Services (RB) is a general term for technologies
providing banking services on the basis of orders transmitted by the client
remotely (most often without his direct visit to bank). The RB system is
a multi-functional software and hardware complex that allows the bank’s
clients to prepare and send payment orders and other documents to the
bank for performing, to view account balances, as well as to receive a
wide range of relevant nancial information without contacting the bank.
Interference with the operation of RB systems occurs by infecting the
computer with malware via malicious spam, visiting infected sites or using
infected magnetic based memory. The main task of the virus at the initial
stage is to monitor and collect information and transmit it to the computer
of fraudsters.
The virus can obtain access to passwords to RB systems, electronic 16
digital signature keys, read payment details. There may also be programs
that track connection window to RB with the intent of further interception
of the secret information which is entered in this window, or copy content
of the clipboard at the moment of connecting to systems of electronic
payments. The purpose of fraudulent actions is to distort information,
generate (with the help of RB) and make a payment that will look like an
ordinary payment of the victim, while scammers will transfer money to
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the accounts of a ctitious person or ctitious rm, trying to feature the
usual payments for usual purchases of the client. Later on, most often
the money stolen from the victim’s account is transferred into cash, and
cash withdrawals are carried out mainly through ATMs in order to avoid
communication with bank employees (Kornienko and Strelyany, 2015).
4.9. Cyber fraud can be divided into the following categories:
cyber fraud with the intent of misappropriation of funds.
cyber fraud with the intent of obtaining information (for personal use
or for resale);
in the banking system:
1) ATM fraud: skimming - making, selling, and installing on ATMs
devices for reading/copying information from the magnetic strip
of a payment card and obtaining a PIN code to it (illegal copying of
the contents of magnetic strip tracks (chips) of bank cards); use of
“white plastic” for “cloning” (counterfeiting) of a payment card and
cash withdrawal at ATMs; cash trapping - theft of cash from an ATM
by installing a special restraining pad Transaction Reversal.
Fraud on the ATM tent - interference in the work of the ATM during cash
withdrawal operations, which preserves the balance of the card account
unchanged while in fact the attacker has already received cash; Cash
Trapping - sealing the dispenser for misappropriation by the attacker of
cash that was debited from the card account of the authorized cardholder;
- carding - illegal nancial transactions using a payment card or its details,
which are not initiated or conrmed by its holder; - unauthorized debiting
of funds from bank accounts using Remote Banking Systems.
2) fraud in marketing and service networks: concluding ctitious
trade acquiring agreements for servicing counterfeit payment cards;
obtaining payment card details, including the use of technical
means for their “cloning”; online fraud – misappropriation of
citizens’ money through online auctions, online stores, websites and
telecommunication means; transactions with the amounts of money
below the established limit without authorization; use of lost/stolen/
counterfeit payment cards.
3) fraud on the Internet: obtaining, without right, of payment card
details; phishing - luring of Internet users’ logins and passwords to
e-wallets, online auction services, currency transfer or exchange,
etc.; performing operations with the use of stolen payment card
details; creating malware with the intent of obtaining, without
right, payment card details (via bogus WEB-sites, dissemination
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of computer viruses and Trojan programs, interception of trafc);
malware - the creation and dissemination of viruses and malware;
re-ling - illegal substitution of telephone trafc.
4) fraud in remote banking systems (RB): creation of computer
viruses and Trojan programs for covert interception of the client’s
computer control with the installed RB software; opening accounts,
performing unauthorized transactions and receiving cash as a result
of unauthorized transactions in RB systems; receiving payments
from foreign senders via the international SWIFT system as a result
of interference in the work of computers and RB systems of clients of
foreign banking institutions (Order, 2013).
According to Part 1 of Article 190 of the Criminal Code of Ukraine, fraud
is misappropriating of someone else’s property or taking possession of the
right to property by deception or abuse of trust. From the point of view
of juridical psychology, fraud means manipulating a person’s behavior to
obtain a quick and maximum prot from him, and from the point of view of
jurisprudence, fraud is the misappropriation of individual property or taking
possession of property rights by deception or abuse of trust (Azarov, et al.,
2018). In criminal law the deception is understood as the informational
and intellectual inuence of one person on the consciousness and will of
another, which is always aimed at certain behavior, i.e. to induce the victim
to a certain behavior. Deception is a way of inuencing the human mind,
which is deliberately luring another person or maintaining delusion through
misinforming or non-informing about various facts, things, phenomena,
actions and others in order to induce certain behavior. Deception in
fraud can consist in the use of software that allows the perpetrator to gain
unauthorized access to information stored or processed in automated
systems, with the intent of impersonating an authorized person. Having
penetrated in this way into the relevant electronic system, the perpetrator
performs certain operations, as it would do the authorized person.
Herein, he may hinder, without right, the processing of information,
distort its content, delete or destroy or set the necessary command to defraud
property or the right to it, set up the system so that it operates in a way
that would ensure the culprit or another person illegal misappropriation
and loss of property or right to it. The essence of fraudulent deception
remains invariant, the only thing is the fraud is committed using electronic
computers and technologies, which require more elaborate and innovative
techniques, training, skills.
Another type of fraud according to Article 190 of the Criminal Code of
Ukraine is abuse of trust, i.e. intentional actions of the offender aimed at
luring the victim using existing or new personal or other trusting relationship
with the intent of defrauding and procuring an economic benet for oneself
or for another person from victim’s property or property rights. Abuse
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of trust as a method of fraud with the use of electronic computers occurs
when the guilty person makes use of trusting relationship (ofcial relations,
friendly relations, etc.) and has free access to the relevant operations and
abuses these relations with the intent of misappropriation of property or
the right to it. If the perpetrator enters the secure electronic system, for
example, by blocking or destroying security codes, and performs illegal
transactions to misappropriate someone’s property or property rights,
his actions do not constitute fraud because there is no deception or abuse
of trust. They should be prosecuted as theft of someone’s property and
criminalized under the relevant part of Article 185 of the Criminal Code of
Ukraine.
4.10 Proposals of legal regulation and countering cyber fraud
It should be noted that the term ‘fraud’ is inappropriate to use in legal
denition of socially dangerous actions the essence of which is in entering,
altering, disrupting, destroying or suppressing computer data in the
computer, automated system, computer network or telecommunication
network, or is characterized by any other inuence on the processing
computer data that has changed the result of this processing, with the
intent of misappropriating someone’s property, because the fraud always
encroaches the ownership and is followed by the voluntary transfer of
property while the inuence on computer information is coercive and
doesn’t involve the inuence on the victim’s conciseness.
First, a computer network (including the Internet) is by denition a
set of geographically dispersed data processing systems, facilities and (or)
communication and data transmission systems that provide users with
remote access to and sharing of its resources (UN, 2010). Accordingly, the
posting of the message on a specialized website means the use of information
resource via remote access to it, which is provided with means of electronic
computing, i.e. is an operation using an electronic computer.
Secondly, under Article 19 of the Law of Ukraine “On Consumer
Protection” (1991): posting a knowingly false information about the sale of
goods or provision of certain services is a dishonest business practice and is
prohibited, and criminal law characteristic of fraud committed by posting
such information on relevant Internet resources, is criminalised under
Part 3 of Article 190 of the Criminal Code of Ukraine “Fraud committed
through illegal transactions using electronic computers”, so it is necessary
to establish in the Criminal Code of Ukraine the following rule:
“Theft of property through the use of electronic computers.” Criminals
mostly use special malicious programs or technical means (in particular,
the Code of Laws of the United States, the Dutch Criminal Code of the
Netherland, the Criminal Code of Denmark or the Criminal Code of FRG
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refer to it) and the introduction to part 3 of Article 190 of the Criminal Code
of Ukraine amendment “by means of malware or malicious hardware “shall
become an additional instrument for combating” cybercrime” (Shulyak,
2011).
Punishment for fraud shall be economic, monetary and the main sanction
for such crimes should be a ne, and as an alternative (in cases where the
perpetrator does not want to pay the ne, does not have money to pay it or
has no property by which to pay a ne) - correction works or deprivation
of the right to hold certain positions or engage in certain activities for up
to three years - for ofcials; conscation of relevant malicious software or
hardware that are in property of the perpetrator, if they were used during
the commission of fraud.
Now, it can be stated that the current rule (Criminal Code of Ukraine,
2001: part 3 of Article 190) can work effectively if it is correctly interpreted
and applied, as fraud in this case implies entering into computer,
automated system, computer network or telecommunication network of
false information, because, rstly, the computer does not store money or
property, but only information about this property or transactions with
this property; secondly, if the perpetrator even secretly enters a computer
system with the intent to obtain, without right, money or property, it is
done through the manipulation with programs, data or hardware, which
is typical for deception, which is specic to computer fraud (for example,
a person, having access to the automated system of a banking institution,
inputs or alters computer information, as a result of which, the money
is transferred from the victim’s account to perpetrator’s one), while the
relevant protective (security) systems or computer programs interpret this
false information as if it were at the victim’s own request or on his personal
behalf).
It should be noted that from 1 August, 2016, the Visa payment system
introduced in Ukraine the principle of zero customer liability for fraudulent
actions (banks will return money stolen by fraudsters to Visa cardholders).
Measures taken by Ukrainian banks to prevent fraud include monitoring,
SMS-informing, banning Internet payments without a phone call to the
bank, setting limits on cash withdrawals and payments (in particular, on
the Internet). A bank card with a computer chip is the most secure, as
it is much more innovative than magnetic strip cards, as they cannot be
counterfeited, and the data of such card cannot be copied by fraudsters.
Banks monitor the security of ATMs for fraudulent installation of additional
reading devices, equip ATMs with anti-skimming pads on the card
acceptor, video surveillance, etc. General rules and recommendations for
users are: mandatory connecting to 3D Secure service, SMS - and mobile
banking; storing of cards and passwords separately; avoiding of payments
on the Internet by the card on which the basic funds are accumulated;
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non-disclosing of card details to the third persons, periodic (once a
month) password changing; setting payment limits in the retail network
and the Internet; complete blocking of card payments on the Internet;
non-disclosing security codes CVV2/CVC2; receiving a card with a chip
(Makarova, 2016).
In order to take into account certain provisions concerning illegal
transactions with means of payment, such as bank payment cards, it is
appropriate to focus on the Council of Europe Framework Decision “On
Combating Fraud and Counterfeiting Non-cash Means of Payment” (CF,
2001). In accordance with the provisions of this document, the following
crimes related to means of payment are distinguished: 1) theft or other
illegal misappropriation of a means of payment; 2) forgery or falsication
of a means of payment with the intent of using it in fraud; 3) acceptance,
receipt, transfer, sale or transfer to any person or possession of a stolen, or
otherwise misappropriated, or counterfeit or falsied means of payment
with the purpose of its use in fraud; 4) fraudulent use of a stolen, or
otherwise misappropriated, or counterfeit or falsied means of payment.
The implementation of the provisions of the EU Directive 2007/64 (EP,
2007) has signicantly inuenced the regulation of activities to prevent
criminal encroachments committed with the use of bank payment cards.
However, one of the reasons for the high latency of cyber-fraud is ‘the
absence of state borders’ if this criminal offense is committed via the
Internet, imperfect legislation and, consequently, the inability to cooperate
with other countries in investigating such criminal offenses because of
signicant differences in legislation of different countries regarding this
type of criminal offence.
Also, we suggest the main ways for combating fraud on the Internet
committed using electronic computers: development of new software
and constant renewal of antivirus programs; creation of the system of
authentication of Internet addresses for checking the conformity of
the address entered by the user to the real server; greater spreading of
information about known methods of Internet fraud to Internet users. In
order to prevent payment card fraud, the National Bank of Ukraine shall
improve and spread, on permanent basis, recommendations for payment
card holders on their use.
Conclusions
Summing up, it can be noted that our survey based on questionnaire
of law enforcement ofcers, analysis of law enforcement practice, existing
scientic publications, and legal regulations, helped specify the most
common in Ukraine methods of computer-related fraud, provided them
with criminal law characteristics and suggested measures for counteracting
these criminal offences.
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We provided reasons for clarifying the features of computer-related
fraud. Illegal transactions using electronic computers should impose as
those aimed at misappropriating someone’s property or property rights,
which are based on deception or abuse of trust, i.e. fraud using computer
networks, despite evolutionary processes, remains a crime against property
committed through deception or abuse of trust. And deception occurs
not during direct physical verbal or non-verbal contact with the victim,
but remotely, i.e. using the capacity of computer and telecommunication
devices, systems or networks.
The danger of such fraud is that computer techniques greatly facilitate
fraud, allows someone to misappropriate signicant funds, causing
irreparable damage to owners. Public relations of any form of ownership
are the direct object of fraud committed through illegal transactions using
electronic computers. Public relations in the eld of the use of electronic
computers, telecommunication networks can be neither generic nor direct
object of such fraud. It should be noted that operations with electronic
computers during the commission of fraud in most cases are quite legal
and legitimate, for example, the use of the Internet, telecommunication
network. Based on the above, it can be concluded that the object of fraud
committed via illegal transactions using electronic computers is property
relations and committing of such fraud is carried out by a person who is
not the owner. As for the subject of property relations, which is property
itself or the right to it, after the fraud has been committed, it becomes the
property of the fraudster, or the fraudster obtains the right of ownership for
the subject of property relations. Fraud is an intentional criminal offence,
and the perpetrator wants the result – procuring, without right, certain
property for his benet. As for the lost prot, the guilty person, as a rule,
has no direct intent, and this excludes the possibility of recognizing this
consequence as an element of any form of theft.
Acknowledgment
Authors thank the Department of Cyber police of the National Police of
Ukraine for participating in the sociological research.
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Esta revista fue editada en formato digital y publicada
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