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 cientíca 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.40 N° 73
Julio
Diciembre
2022
Recibido el 16/03/2022 Aceptado el 28/04/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
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.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
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ti ga do res; es ti mu lar la in ves ti ga ción en es tas áreas del sa ber; y pro pi ciar la pre sen ta-
ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
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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Vol. 40, Nº 73 (2022), 377-402
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Criminal law and forensic support in the
ght against cybercrime
DOI: https://doi.org/10.46398/cuestpol.4073.20
Valentin Kovalenko *
Anatolii Kryzhanovskyi **
Oleksandr Kolb ***
Svitlana Soroka ****
Halyna Popadynets *****
Abstract
The article analyses legislation and scientic work on
combating cybercrime based on the use of a set of general and
special methods, methodological principles and approaches of
legal science. It is concluded that with the introduction of the
term “cybercrime” in the criminal law of Ukraine, the use of the
term “cybercrime” becomes relevant, which should be understood
as a socially dangerous crime in cyberspace, a responsibility
that is provided for by the Ukrainian law on criminal responsibility and
that is also recognized as a criminal oense by international treaties that
regulate the matter. Emphasis is placed on the desirability of making
appropriate terminological changes in the Law of Ukraine “On the Basic
Principles of Cyber Security” and other regulations, as well as taking other
systemic measures at the conceptual and organizational level, to identify
the main cybersecurity threats and formulate measures to prevent and
investigate them, determine a single body for the operational management
of all entities whose task is to ensure the cybersecurity, create a system
* Doctor of Law, Associate Professor, Leading researcher at Copyright and related rights sector of the
laboratory of copyright and information technologies of the research center for forensic intellectual
property of the ministry of justice of Ukraine, Kyiv, Ukraine. ORСID ID: https://orcid.org/0000-
0002-2041-250X
** Doctor of Law, Senior Lecturer at the Department of Criminal Law and Procedure of the Educational
and Scientic Institute of Law, Psychology and Innovative Education, Lviv Polytechnic National
University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-2432-5286
*** Doctor of Law, Professor, Honored Lawyer of Ukraine, Professor of Criminology and Criminal
Enforcement Law at National University of Law Honored Lawyer of Ukraine, Kharkiv, Ukraine. ORСID
ID: https://orcid.org/0000-0003-1792-4739
**** Candidate of Law, Associate Professor, Associate Professor at the Department of Criminal Law and
Procedure of the Educational and Scientic Institute of Law, Psychology and Innovative Education,
Lviv Polytechnic National University, Lviv, Ukraine. ORСID ID: https://orcid.org/0000-0002-9351-
4531
***** Candidate of Philosophical Sciences, Associate Professor, Associate Professor at the Department
of Criminal Law and Procedure of the Educational and Scientic Institute of Law, Psychology and
Innovative Education, Lviv Polytechnic National University, Lviv, Ukraine. ORСID ID: https://orcid.
org/0000-0003-1701-0830
378
Valentin Kovalenko, Anatolii Kryzhanovskyi, Oleksandr Kolb, Svitlana Soroka y Halyna
Popadynets
Criminal law and forensic support in the ght against cybercrime
of technological means of the national cybersecurity system and establish
closer international cooperation.
Keywords: information space; cybersecurity; cybercrime; criminal
liability; classication of crime.
Derecho penal y apoyo forense en la lucha
contra el ciberdelito
Resumen
El artículo analiza la legislación y los trabajos cientícos sobre la
lucha contra el delito cibernético sobre la base del uso de un conjunto de
métodos generales y especiales, principios metodológicos y enfoques de la
ciencia jurídica. Se concluye que con la introducción del término “delito
cibernético” en la ley penal de Ucrania, cobra relevancia el uso del término
“delito cibernético”, el cual debe entenderse como un delito socialmente
peligroso en el ciberespacio, responsabilidad que está previsto por la ley de
Ucrania sobre responsabilidad penal y que además está reconocido como
un delito penal por los tratados internacionales que regulan la materia. Se
hace hincapié en la conveniencia de realizar los cambios terminológicos
apropiados en la Ley de Ucrania «Sobre los principios básicos de la seguridad
cibernética» y otras regulaciones, así como tomar otras medidas sistémicas
a nivel conceptual y organizacional, para identicar las principales
amenazas de seguridad cibernética y formular medidas para prevenirlas e
investigarlas, determinar un órgano único para la gestión operativa de todas
las entidades cuya tarea es velar por la ciberseguridad, crear un sistema de
medios tecnológicos del sistema nacional de ciberseguridad y establecer
una cooperación internacional más estrecha.
Palabras clave: espacio de información; ciberseguridad; ciberdelin-
cuencia; responsabilidad penal; calicación de delito.
Introduction
The global computerization of modern society aects all spheres of
human life and the economy, data transmission via the Internet, electronic
signatures, key certication, electronic transactions and payments have
become the object of illegal actions. This gives grounds to claim that
«cybercrime» in the XXI century will be one of the most numerous. In
this regard, the issue of cybersecurity of the state and society as a whole is
relevant.
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Vol. 40 Nº 73 (2022): 377-402
In Ukraine, information security is one of the most important functions
of the state, because the welfare of the nation depends on the information
component. Due to socio-economic problems, Ukraine lags signicantly
behind the countries party to the Convention on Cybercrime. Cyber wars,
cyber terrorism, cyber espionage have become commonplace, so crime in
the information sphere is a signicant threat to national security in the
economy.
The degree of latency of cybercrime remains, which is due to industrial
cyber espionage, and the most common types of such crimes are carding,
phishing, vishing, skimming, shimming, online fraud and others.
The registered array of criminal encroachments in the analyzed area
indicates a signicant increase in the level of these crimes in recent years
and has the following indicators: in 2015 were recorded 598 crimes, in 2016
– 865, in 2017 – 2573, in 2018 – 2301, in 2019 year – 2284, in 2020 – 2701
crimes (Uniform report on criminal oenses by state).
There is no doubt that today the criminogenic situation requires
the development and implementation of measures to prevent criminal
encroachments on facilities in the use of computers, systems, computer
networks and telecommunications networks. Despite the fact that the
Parliament of Ukraine has tried to regulate the relations arising in
cyberspace, namely adopted the Law of Ukraine «On Basic Principles of
Cyber Security in Ukraine», the state is constantly a victim of cyber attacks,
in connection with which the issue of combating cybercrime, proper
criminal law and forensic support in the ght against these crimes becomes
especially relevant.
1. Methodology of the study
For the achievement of the most reliable scientic results, the
methodological basis for the development of methods and methods
of scientic knowledge, the storage of such a systematic approach to
the consideration of vivid problems in the modern social world. In the
process of a scientic joke, scientic and special methods, methodological
principles and approaches to legal science were victorious. The basis of the
preliminaries is the dialectical method, which is the scientic method of
developing social and legal manifestations in these conicts, development
and changes, which gave the opportunity to value the specialness of
the critical legal situation. Logic-semantic method of vikoristano for a
thorough understanding of the understanding of the legal qualications of
cyberzlochin and preliminaries of basic g.
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Popadynets
Criminal law and forensic support in the ght against cybercrime
The historical-legal method made it possible to see the genesis of the
science of thought and to understand the victors of the legal age. The
systemic-structural method allows for the signicant number of nutritional
problems, such as the quality of the quality and the implementation of
state policy in the sphere of ghting against this type of evil. The statistical
method is used in the process of public relations, grouping and analysis of
empirical material and estimates of the most important indicators of the
current cyber-problem in Ukraine and society.
The obstinacy of the comparative (comparative) method has given
the opportunity to see through the foreign lands near the struggle with
the common malignancies. Synergetic method that allows to develop the
composition of criminal law characteristics of cybersecurity, as well as the
importance of criminal law and forensic mechanisms to combat cybercrime,
which is visualized in the structures of scientic knowledge.
2. Analysis of recent research
The issue of legal regulation of activities in the eld of combating
crime is a constant subject of scientic research of criminologists. This is
largely due to the fact that the development of society and relations in it
are permanent processes. As a result, crime as a form of social practice is
constantly improving, acquiring new forms and manifestations. Therefore,
society and the state are trying to respond accordingly to these processes
of «improvement» and «self-improvement» of crime. One of the forms
of such a response is law-making – the creation, amendment or repeal of
regulations governing the ght against crime. Their purpose is to regulate
various legal ways of social relations in the most vulnerable spheres of
social life.
Criminal law policy, as a system-forming element of crime policy,
which, in turn, is an integral part of all public policy, solves its narrower
tasks aimed at creating an eective mechanism for protecting key public
relations, values, benets and interests and combating crime. criminal
remedies in terms of sustainable development of the state (Kozych, 2020).
Today, cyber attacks harm not only individuals and legal entities, but also
states. Every year, hundreds of events are held around the world to discuss
current cybersecurity issues. New denitions are constantly appearing in
literary dictionaries: cyber intelligence, cyber terrorism, cyber espionage,
cyberspace, critical infrastructure, and so on. Cybersecurity and the ght
against cybercrime in the 21st century are among the most important issues
that require in-depth analysis, development and implementation of high-
tech solutions to prevent and detect cyber threats.
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The issue of developing eective legal mechanisms for the international
ght against cybercrime has been reected in the works of many scholars.
Among them, in particular: A. Savchenko (Savchenko, 2001), M. Karchevsky
(Karchevsky, 2017), E. Skulish (Skulish, 2014), T. Sozansky (Sozansky,
2009), M. Gutsalyuk (Gutsalyuk, 2019), M. Shemchuk (Shemchuk, 2018),
D. Richka (Richka, 2019), I. Kozych (Kozych, 2020), A. Sakovsky and M.
Klymchuk (Sakovsky and Klymchuk, 2019), O. Samoylenko (Samoylenko,
2020) and others.
At the same time, despite the importance of these and other scientic
developments, today there are many problems in the implementation of
criminal law policy to combat crime in the use of computers (computer),
systems and computer networks and telecommunications networks.
In particular, there is no comprehensive criminal-legal analysis of the
qualication of crimes in this area, the issues of criminal-legal means of
combating cybercrime remain unresolved.
At the same time, the issues concerning the procedural capabilities
of the operational units of the National Police of Ukraine and other law
enforcement agencies in documenting the illegal behavior of persons who
have committed cybercrimes remain insuciently researched. Within
the framework of reforming criminal procedural and operational-search
legislation, the problems of detailing legislation that would reect the
provisions of the Convention on Cybercrime on obtaining electronic
evidence, restricting (blocking) certain information resources (information
services), specic conditions for searching and retrieving digital (electronic)
evidence.
The above indicates the relevance and timeliness of the chosen topic of
the scientic article.
The purpose of the article is to determine the legal nature of cybercrime,
the peculiarities of the regulation of legal provisions on this category of
crimes. On this basis, it is important to identify the root causes and forms
of cybercrime, to develop appropriate ways to combat the criminal law and
forensic level.
3. Results and discussion
3.1. International policy to inuence cybercrime
From the point of view of the fundamental legal doctrine – cybercrime
consists of criminal acts committed with the help of electronic information
and communication means. In other words, cybercrime can be any
traditional oine crime (such as theft, fraud, money laundering), but
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Valentin Kovalenko, Anatolii Kryzhanovskyi, Oleksandr Kolb, Svitlana Soroka y Halyna
Popadynets
Criminal law and forensic support in the ght against cybercrime
committed on the Internet. Some researchers also single out «hybrid»
or «cyber-driven» crimes and cyber-dependent crimes, which have only
been made possible by the development of the Internet and related digital
technologies.
A number of countries have developed special laws aimed at combating
cybercrime. For example, Germany, Japan and China have amended
the relevant provisions of their criminal codes to describe and combat
cybercrime. Some countries, instead of dividing cybercrime into separate
criminal acts, have simply added specic clauses to their national legislation
and codes to criminalize the illicit use of digital technology to commit any
crime. This approach has resulted in the oender being charged with two
crimes at the same time (Cybercrime, Legal Regulation).
Thus, cybercrime as a phenomenon arose solely in the evolution of
computer and information technology, and the purpose of criminals is
personal and corporate data, which in themselves are valuable or through
which criminals can illegally seize money, intangible assets or property or
non-property rights etc. Today, there are many types of cybercrime, among
which the biggest threats are: online fraud, DoSattacks, interface, malware
(viruses), carding, phishing, computer espionage, online extremism (which
is increasingly classied as cyberterrorism), personal insult or slander, etc.
Most of the crimes listed above are committed not only in the territory
or in the virtual space of one particular country, they can also be of a more
global interstate or even international nature. In fact, this creates a need
for international cooperation, as one of the main problems faced by law
enforcement operatives in the investigation of cybercrime is the diculty in
establishing the identity of the oender, his state and territorial location, as
well as the rule of law under which the oender can be prosecuted.
The active ght against cybercrime is carried out in the countries of the
European Union, where the necessary legal framework for the protection of
cyberspace has been created. The European Union’s cybersecurity strategy
was adopted in 2013. Its peculiarity is that the strategy covered various
aspects of cyberspace, in particular, the internal market, justice, domestic
and foreign policy. Together with the Strategy, a legislative proposal
on strengthening the security of the European Union’s information
systems was developed and adopted, and the priorities of the European
Union’s international policy in cyberspace, as dened by the Strategy (EU
International Cyberspace Policy), were identied.
At present, only 10 of the 27 countries of the European Union have
developed national cybersecurity strategies. Today, the most protected
countries are Denmark, Great Britain, Finland, Sweden, France and the
Netherlands (EU International Cyberspace Policy).
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It should be noted that the terms “cybercrime” and “computer crime”
are often used interchangeably. However, it is the term cybercrime that best
reects the essence of this phenomenon.
The Law of Ukraine “On the Basic Principles of Ensuring Cyber Security
of Ukraine” denes cybercrime as a set of cybercrimes. And cybercrime
(computer crime) – as a socially dangerous crime in cyberspace and / or
with its use, liability for which is provided by the law of Ukraine on criminal
liability and / or which is recognized as a crime by international treaties of
Ukraine (The Law Of Ukraine “On The Basic Principles Of Ensuring Cyber
Security Of Ukraine”, 2017). Thus, today in the legislation of Ukraine there
is no clear denition of the concept of “cybercrime”.
The European Convention on Cybercrime outlines a range of socially
dangerous acts that may fall under the concept of «cybercrime» at the
national level, including illegal access to a computer system, illegal data
interception, intrusion into the system, device abuse, forgery and fraud,
related to computers; oenses related to child pornography; infringements
related to copyright and related rights.
Characteristic features of these crimes are the following: the need for
widespread use of special knowledge in the detection and recording of
traces of crime in electronic form; organization and transnational character,
as national borders are not an obstacle to this phenomenon; information
stored in computer systems is short-term; the ability to destroy or alter
computer information; detection, recording and retrieval of evidence is a
complex process; high level of technical support of oenders; high degree
of anonymity; high latency due to the reluctance of victims to inform about
such crimes due to distrust in the potential of law enforcement agencies;
lack of sustainability of cybercrime due to the constant improvement of
computer technology.
It is worth noting that the Council of Europe Convention on Cybercrime
is the only binding international instrument in the eld of combating
cybercrime (Cyber Crime Convention, 2001). It contains a set of basic
principles for any country, develops national legislation to combat
cybercrime. However, the classication given in the Convention, according
to some Western and domestic researchers, is not comprehensive. Initially,
the Convention cybercrime was divided into four groups.
Then, in early 2002, a protocol was adopted in addition to the Convention,
which supplemented the list of crimes by disseminating racist and other
information that incited violence, hatred or discrimination against an
individual or group of persons based on racial, religious or ethnic origin.
With the development of scientic and technological potential and public
relations in cyberspace, this list will, unfortunately, expand. In addition,
the crimes listed in the Convention are related to some, but not all, actions
that encroach on public safety.
384
Valentin Kovalenko, Anatolii Kryzhanovskyi, Oleksandr Kolb, Svitlana Soroka y Halyna
Popadynets
Criminal law and forensic support in the ght against cybercrime
In the report of the Home Aairs Committee of the British Parliament
on cybercrime in 2013, cybercrime is divided into three categories:
• exclusively cybercrime, where digital systems are the main target,
are also a means of encroachment. This category includes assault
on computer systems to destroy the infrastructure of Internet
technologies and illegal possession of data;
• existing crimes that have been translated into cybercrime due to the
use of the Internet;
• use of the Internet for drug tracking and as an auxiliary tool for
other crimes (Home Aairs Committee E-Crime Fifth Report Of
Session, 2013–2014).
• The joint communication of the European Commission in 2013 to
the European Parliament, the Council, the European Economic and
Social Committee and the Committee of the Regions also reveals
cybercrime through three main categories:
• traditional types of crimes (for example, fraud, forgery of documents,
etc.) committed with the use of electronic communication networks
and information systems;
• placement of illegal content in electronic media;
• attacks on information systems, blocking of software of sites and
hacking (Joint Communication to the European Parliament, the
Council, the European Economic and Social Committee and The
Committee Of The Regions, 2013).
Most researchers studying the problem of cybercrime suggest dividing
cybercrime into types depending on the object and subject of the attack.
The most common divisions as an option are computer crimes and crimes
committed with the help of computers, computer networks and other
devices to access cyberspace. This position is supported by the fact that
the Tenth United Nations Congress on the Prevention of Crime and the
Treatment of Oenders, which considered measures to combat computer-
related crime, considered the concept of cybercrime from two perspectives:
cybercrime in the “broad” and “narrow” sense.
Cybercrime in the narrow sense (computer crime): any illegal act
committed through electronic operations, the purpose of which is the
security of computer systems and the data they process. Cybercrime in the
broadest sense (as a computer-related crime): any wrongful act committed
with the help of computers or involving computers, computer systems or
networks, including the illegal possession and supply or dissemination of
information through computer systems or networks.
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However, the report of the same Congress states that the term “computer
crime” was developed to cover both completely new forms of crime targeting
computers, networks and their users, and more traditional crimes that are
currently committed using or using computer equipment (Tenth United
Nations Congress for Crime Prevention and Treatment, 2000).
In addition, the UN Secretary-General’s statement “Findings of a study
on eective measures to prevent and combat high-tech and cybercrime”
uses the term “traditional crime”: “The use of new technologies for criminal
purposes has led to completely new forms of crime. On the other hand,
more traditional crimes are now being committed by new methods that
increase the benets or reduce the risks for criminals (UN Economic and
Social Council. Commission For the Prevention of Crime and Crime, 2001).
Foreign scholars, such as Dr. Mike McGuire and Samantha Dowling
(England), also believe that cybercrime is a general term used to describe
two dierent but closely related crimes: cyberdependent and cybercrime
(cybercrime).
Crimes committed with the use of computers, computer networks
or other forms of communication and information technology. Such as
spreading viruses and other malware, DDoS attacks, hacking servers to
capture network infrastructure or web pages. Such crimes are aimed at
damaging computers and network sources.
Cybercrime is a traditional crime that is exacerbated or achieved through
computers, computer networks, or other information and communication
technologies. They can still be done without the use of information and
communication technologies (McGuire and Dowling, 2013).
It can be argued that doctrinal approaches to understanding the concept
of cybercrime are dierent. However, it is worth noting that despite the
available alternative denitions, it is the term cybercrime that best reects
the essence of this phenomenon.
According to the classication of cybercrime, it can be concluded that
most researchers studying the problem of cybercrime suggest dividing
cybercrime into types depending on the object and subject of encroachment:
new crimes made possible by the latest computer technology (crimes under
Chapter XVI of the Criminal Code of Ukraine); traditional crimes committed
with the help of computer technology and the Internet.Legislation on
cybercrime, the development of modern mechanisms for identifying and
identifying the perpetrators of cyberattacks and the responsibility for the
oense should play an important role in preventing an increase in the
number of cyberattacks at the national level.
In a global sense, cybersecurity is the implementation of measures to
protect networks, software products and systems from digital attacks.
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Valentin Kovalenko, Anatolii Kryzhanovskyi, Oleksandr Kolb, Svitlana Soroka y Halyna
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Criminal law and forensic support in the ght against cybercrime
3.2. National mechanisms for combating cybercrime in Ukraine
In Ukraine, at the legislative level, relevant laws and regulations are
adopted that regulate relations in this area. As of the end of 2020, the legal
basis of cyber security of Ukraine includes the following regulations: the
Constitution of Ukraine, the Criminal Code of Ukraine, the laws of Ukraine
«On the basic principles of cyber security of Ukraine», «On information»,
«On information protection in information and telecommunications
systems»,»On the Fundamentals of National Security» and other laws,
the Doctrine of Information Security of Ukraine, the Council of Europe
Convention on Cybercrime and other international treaties, the binding
nature of which was approved by the Verkhovna Rada of Ukraine.
To eectively combat cybercrime in Ukraine, following the example
of foreign countries, it would be necessary to: create a political basis
(conceptual level), improve the system of legislation (legislative level),
identify a system of bodies whose main functions would be cyber defense
of Ukraine (institutional level). One of the rst steps towards creating a
political basis was the adoption of the Presidential Decree «On the decision
of the National Security and Defense Council of Ukraine of January 27,
2016 «On the CyberSecurity Strategy of Ukraine».
The main purpose of this Strategy is to ensure safe conditions for the
use of cyberspace, protection of the interests of the individual, society
and the state. Taking into account all the positive and negative sides of
the Strategy, Ukraine must create a large high-tech system to ensure the
reliability and security of communications in the information sphere (On
The Cyber Security Strategy Of Ukraine, 2016).
Adopted on October 5, 2017, the Law of Ukraine «On Basic Principles of
Cyber Security of Ukraine» denes the legal and organizational framework
for protecting the vital interests of man and citizen, society and the state,
national interests of Ukraine in cyberspace, main goals, directions and
principles of state policy in cybersecurity , the powers of state bodies,
enterprises, institutions, organizations, individuals and citizens in this
area, the basic principles of coordination of their activities to ensure
cybersecurity (Law Of Ukraine «On Basic Principles Of Cyber Security
Of Ukraine»). Undoubtedly, this Law establishes general provisions and
denes the main aspects of cybersecurity in Ukraine, but this Law is not a
legal tool for practical application in the event of cyber attacks.
According to paragraph 5, part 1 of Article 1 of the Law of Ukraine «On
Fundamentals of Cyber Security of Ukraine» cybercrime (computer crime)
– a socially dangerous crime in cyberspace and / or with its use, liability
for which is provided by the Law of Ukraine on Criminal Liability and / or
which is recognized as a crime by international treaties of Ukraine. This
law also species the objects of cybersecurity, cybersecurity and critical
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infrastructure, which are subject to cybersecurity, and the legislator denes
the subjects of cybersecurity protection and their powers (Law Of Ukraine
«On Basic Principles Of Cyber Security»).
Cybercrime is cross-border in nature, so most states are interested in
stopping actions against the leakage of personal data of their citizens on
the Internet, and are interested in reducing the number of cyber attacks
that interfere with public authorities, hospitals, banks and businesses. In
fact, there is a high probability of going unpunished by seizing information
that is a state secret, funds from well-known world companies through
cyberattacks and interfering in the election process of another country.
Therefore, the eective ght against cybercrime requires greater, faster
and more eective international cooperation, and therefore there is a need
to unite countries to jointly ght cybercrime in the world (Tkachuk, 2020).
An important piece of legislation that plays a key role in the system
of measures to combat cybercrime is the Convention on Cybercrime of
November 23, 2001, which was ratied in Ukraine, provides for four
groups of crimes involving the use of computer technology as a tool to
commit them. The rst group includes crimes against the condentiality,
integrity and availability of computer data and systems (illegal access,
illegal interception, inuence on data, inuence on the functioning of
the system, as well as illegal use of devices and computer programs). The
second group includes crimes related to the use of computer tools (forgery,
fraud). The third group includes crimes related to the content of the data.
The fourth includes crimes related to copyright and related rights (Cyber
Crime Convention, 2001).
In our opinion, the Directive on Network and Information Security,
which sets out the general approach and rules of the European Union in
the eld of cybersecurity (Directive Of The European Parliament And The
Council Of The European Council, 2016), needs to be implemented into
national legislation. This document is aimed at intensifying cooperation
on cybersecurity between the countries of the European Union. We believe
that condential data is the main target of cybercrime attacks.
The General Data Protection Regulation (GDPR) can also be considered
a cybersecurity legal standard. After all, in the case of compliance with
the requirements of the Regulations, the level of protection of personal
information in the digital environment is signicantly increased. Therefore,
an important task for most countries in the coming years is to develop ways
to implement the accepted norms in the eld of cybersecurity in practice,
which will help reduce cybercrime in the world.
In Ukraine, cybersecurity policy is entrusted to a number of government
agencies, namely the State Service for Special Communications and
Information Protection of Ukraine, the National Police of Ukraine, the
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Security Service of Ukraine, the Ministry of Defense of Ukraine and the
General Sta of the Armed Forces of Ukraine, intelligence agencies, the
National Bank of Ukraine. Relevant subdivisions operate in each of these
bodies.
Despite the large number of criminal proceedings, the Cyberpolice
Department does not announce the real results of such investigations.
Indicating in the report the number of identied oenders in the amount of
800 people, there is no information about the number of actual sentences
against these people and bringing them to justice. It is not clear from the
report whether all these individuals have been declared suspects, whether
charges have been led and in what status they are (Nikulesko, 2019).
According to the Convention on Cybercrime, cybercrimes are
conditionally divided into four types. The rst type includes oenses against
the condentiality, integrity and availability of computer data and systems.
This type of cybercrime includes all crimes against computer systems and
data (for example, intentional access to a computer system or part thereof;
intentional damage, destruction, deterioration, alteration or concealment
of computer information; intentional commission, not having the right to
manufacture, sell, purchase for use, distribute or otherwise make available
devices, including computer programs).
The second type of cybercrime includes computer-related oenses.
Such crimes are characterized by an intentional act that results in the loss
of another person’s property by any introduction, alteration, destruction or
concealment of computer data or any interference with the operation of a
computer system, with fraudulent or dishonest acquisition, without having
to it is a right, an economic advantage for oneself or another person.
The third type of cybercrime covers oenses related to content (content),
which is the commission of intentional illegal acts to produce, oer or
provide access, distribution of child pornography, as well as possession of
such les in their system.
The fourth type is intentional actions related to infringement of
copyright and related rights, in accordance with the requirements of the
Berne Convention for the Protection of Literary and Artistic Works, the
Agreement on Trade-Related Aspects of Intellectual Property Rights and
the WIPO Copyright Agreement, as well as national legislation of Ukraine.
There are also other classications of cybercrime, but the proposed
convention is the most popular.
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3.3. Criminal law mechanisms of ght against cybercrime in
Ukraine
The main articles of the Criminal Code of Ukraine, which investigate
cybercrime in Ukraine: Art. 176 «Infringement of copyright and related
rights»; Art. 190 «Fraud»; Art. 361 «Unauthorized interference in the
work of electronic computers (computers), automated systems, computer
networks or telecommunication networks»; Art. 361-1 «Creation for the
purpose of use, distribution or sale of malicious software or hardware,
as well as their distribution or sale»; Art. 361-2 «Unauthorized sale or
dissemination of restricted information stored in computers, automated
systems, computer networks or on such media»; Art. 362 «Theft,
misappropriation, extortion of computer information or its acquisition by
fraud or abuse of oce»; Art. 363 «Violation of the rules of operation of
automated electronic computer systems»; Art. 3631 «Interference with
the operation of electronic computers (computers), automated systems,
computer networks or telecommunication networks through the mass
dissemination of telecommunication messages».
In Ukraine, the most complete statistics on cybercrime are reected in
the departmental statistical reporting of the National Police of Ukraine,
in particular in the Report on the results of the National Police, where, in
addition to crimes under Ch. XVI of the Criminal Code, designated and
others committed with the use of electronic computers: “Infringement of
copyright and related rights” (Article 176); “Theft” (Article 185); “Fraud”
(parts 3 and 4 of Article 190). This category also includes crimes under
Articles 200, 229, 231, h. 3, 4 and 5 of Art. 301 of the Criminal Code of
Ukraine (Criminal Code of Ukraine).
In addition, certain indicators of cybercrime under other articles of the
Criminal Code are reected in other statistical reports, in particular the
crimes under Art. 3761 “Illegal interference in the work of the automated
document management system of the court” – in the Unied Report on
Criminal Oenses, which is prepared by the Oce of the Prosecutor General
of Ukraine.
Section II “Participation of services and units of the National Police
in the disclosure of criminal oenses (by type), the pre-trial investigation
of which is completed” reects the results of disclosure (investigation) of
criminal oenses under the Criminal Code: “Forgery of documents, seals,
stamps and forms, as well as the sale or use of forged documents, seals,
stamps”; Crimes in the eld of tracking in narcotic drugs, psychotropic
substances, their analogues or precursors, etc. Thus, not all traditional
crimes committed with the help of computer technology and the Internet
are reported as cybercrime.
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Some Ukrainian scientists consider cybercrime to be crimes under
Articles XVI of the Criminal Code and crimes, the indicators of which are
reected in the report of the National Police of Ukraine.
However, some scientists, in particular Professor AV Savchenko, believe
that in addition to the oenses listed in the report, the category of cybercrime
may include others under the Criminal Code of Ukraine, provided that the
tool for their commission were information network technologies and (or)
their consequences will be reected in cyberspace (Savchenko, 2001).
Cybercrime may include the following: acts aimed at forcible change or
overthrow of the constitutional order or the seizure of state power (Article
109); encroachment on the territorial integrity and inviolability of Ukraine
(Article 110); treason (Article 111); sabotage (art. 113); espionage (art. 114).
The acts provided by such articles of the Criminal code can be carried here
also: 132; 145; Part 1 of Art. 158; 159; 161; 163; 168; 182; 232; 259; 263; 295;
300; 303; 307; 312; 313; 328; 330; 345; 3451; Part 1 of Art. 346; Part 1 of
Art. 350; Part 1 of Art. 376; 381; 387; Part 1 of Art. 398; 422; 436 (Criminal
Code of Ukraine).
The object of cybercrime is public relations, which are harmed by the
impact on information circulating in cybernetic systems. The subjects of
computer crimes are multifaceted and are determined depending on the
norm of the article that falls under the act, but unites them one – they
are information that, in various forms, circulates in computer networks,
systems and computer networks, telecommunication networks (Richka,
2019).
In our opinion, certain provisions of the legislation should be unied
in order to avoid misunderstandings in the denition of acts that fall
under the characteristics of crimes in the use of computers, systems and
computer networks and telecommunications networks and cybercrime as
a whole. Based on the existence in the Convention on Cybercrime and the
Law of Ukraine «On Basic Principles of Cyber Security of Ukraine» of the
concept of «cybercrime (computer crime)», it is necessary to change the
title of Chapter XVI of the Criminal Code of Ukraine «Crimes in the use
of computers, systems and computer networks and telecommunication
networks «on» Cybercrime».
It is also worth pointing out certain problems with the qualication of
cybercrime. According to experts, the main criterion for distinguishing the
crimes provided for in Articles 361363-1 of the Criminal Code from others
related to the use of computer equipment as a tool or means of committing
a crime is the object of encroachment. Thus, the peculiarity of the criminal
qualication of crimes against property committed with the use of computer
equipment is the need to address the issue of the appropriateness of
additional qualication of the perpetrator’s actions under articles providing
for liability for crimes in the use of computer equipment.
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In this case, it should be guided by the fact that the use of computer
equipment in committing crimes against property forms an independent
crime only when certain damage is caused to the object – the relationship of
ownership of computer information, when certain information was illegally
destroyed, blocked, modied. And in those cases when certain information
systems are used for their intended purpose, additional qualications are
not needed (Gutsalyuk, 2019).
There is also now a problem of criminal qualication of actions that
computer users perform in the eld of cryptocurrency circulation and the
use of articial intelligence.
Thus, in March 2018, researchers from RWTH Aachen University
(Germany) found that the Bitcoin blockchain contains about 1,600 les,
where there are scenes of child abuse, with at least 8 les with pornographic
content. The blockchain contains external links to 274 video les on child
abuse and about 142 links to darkweb. According to scientists, the nding
may outlaw the blockchain, but today there are no court rulings in this
regard, apparently due to the complexity of criminal law. Anyone who
participates in the Mining procedure or owns bitcoins can be involved in
the appearance of pornographic content on the network (In Bitcoin Blocks
Found Trace Of Child Pornography, 2018).
In practice, law enforcement and judicial ocials have many problems
qualifying cybercrime. This is especially true in cases of committing this
type of crime, encroaching on several objects protected by criminal law.
Most often, errors are found in the qualication of one act, which, at rst
glance, contains signs of several types of crimes. Thus, the main problem
here is to determine the presence or absence in the perpetrator of an ideal
set of crimes.
During the commission of a cybercrime, damage may be inicted on: 1)
public relations arising in the course of ensuring (with the help of information
and telecommunication systems) the vital activity of a person, society, or
the state; 2) traditional public relations, which are provided by information
and telecommunication systems; 3) traditional public relations, protected
by law, for the harm of which information and telecommunication systems
are used, which are not harmed.
The rst group of relations is protected by Section XVI of the Special
Part of the Criminal Code. These relations are part of the second and third
groups of relations, but in the second group they are harmed together with
the traditional relations of criminal law protection, and in the third - no.
The ideal set of crimes is considered to be two or more crimes committed
in one act. According to the specied groups of relations which are
harmed at commission of such act in case of commission of a cybercrime,
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it is possible to allocate three groups of these crimes which will have the
features of qualication according to the operating Criminal code: 1)
crimes in the sphere of use of computers, their systems, computer networks
, telecommunication networks; 2) crimes qualied under the relevant
article of the Criminal Code based on the object of encroachment with
additional reference to the articles of Chapter XVI of the Criminal Code;
3) crimes qualied under articles of the Criminal code according to object
of encroachment without the additional reference to articles of section XVI
of the Criminal code of Ukraine.
That is, actions with the rst and third groups are single crimes, and
with the other – an ideal set of crimes. But in the practice of applying the
provisions of the Criminal Code in combating cybercrime, acts belonging
to dierent of these groups are often confused. Most often, crimes of the
second group are classied under only one article, and vice versa, crimes of
the rst or third group are classied under several articles, although they do
not require additional qualication.
Thus, the article is applied at qualication of the second group of crimes
or from section XVI of the Criminal code, or another - according to direct
object of encroachment. It is obvious that in both cases the part of the crime
of qualication is not covered, which violates the principles of completeness
and accuracy of qualication, and in the case of qualication of one act
containing one crime under two articles, the principle of prohibition of
double incrimination is violated.
As the generalization of judicial practice shows, a signicant part
of cybercrime occurs in cases where the encroachment on the use of
information and telecommunications systems is carried out for selsh
motives to steal or seize someone else’s property with material damage
and is a way to commit property crimes such as fraud (Article 190 of the
Criminal Code of Ukraine) or misappropriation or seizure of property
through abuse of oce (Article 191 of the Criminal Code of Ukraine). In
most cases, courts classify the following actions as a set of crimes: under
Article XVI of the Criminal Code and the article that provides for liability
for a specic crime against property, the method of which was the use of
information and telecommunications systems.
However, in some cases, the courts classify these actions only under the
articles of Chapter XVI of the Special Part of the Criminal Code of Ukraine.
The authors of the generalization believe that in the latter case, since
E. repeatedly fraudulently seized funds through illegal transactions using
computer technology, and interference in the work of computer technology
is a way of committing a crime against property, such actions need additional
qualications Art. 190 of the Criminal Code of Ukraine (fraud). We believe
that there really is a set of crimes, but it is already taken into account in the
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Criminal Code in Part 3 of Article. 190, therefore, qualication under this
norm is required without additional references to the norms of the Criminal
Code (Hrytsiv, 2007).
One of the common problems of criminal law qualication is the question
of the qualication of the ideal set of crimes, namely the absorption of one
crime by another, which was part of it. This problem still requires a solution
by scientists. In particular, T. Sozansky formulates a rule in relation to
crimes that have additional objects of encroachment: a set of crimes. “
But it is further pointed out that it is quite dicult to determine when an
object is additional and when it becomes the main one, especially when
assessing cybercrime. He proposes, as an option to address this issue, to
determine the public danger of encroachment on the relations that are
protected by these objects. If the social danger of the relations protected by
the additional object is greater than the main object, then the act forms an
ideal set (Sozansky, 2009).
In our opinion, Section XVI of the Criminal Code of Ukraine should be
supplemented with qualiers for committing computer crimes by organized
groups and criminal organizations, increasing criminal liability for use of
ocial position, not only to Article 362 of the Criminal Code, but also to
other provisions of the section. It is advisable to qualify according to the set
of norms of the Criminal Code under Article XVI of the Criminal Code and
Article 255 of the Criminal Code of Ukraine and against the background of
increased public danger.
We also share D. Richka’s point of view that in connection with the
emergence of new types of computer crimes, the provisions of the Criminal
Code of Ukraine should be supplemented with the following crimes: in the
eld of nancial crimes: skimming, cash trapping, carding; in the eld of
e-commerce and economic activity - phishing; in the eld of intellectual
property: piracy, cardsharing; crimes in the eld of information security
(Richka, 2019).
Also, according to M. Karchevsky, the lack of legal certainty regarding
the use of cryptocurrency has a negative impact on the prospects for the
development of the IT sector of the economy. This sector is developing most
dynamically and is promising given the signicant investment in Ukraine’s
economy. The legal ban on the use of cryptocurrency in Ukraine will not
solve these problems, but only create new ones, as Cryptocurrency will be
increasingly used by criminals and corrupt people precisely because of its
illegal status, while the opportunities for law enforcement, for the same
reason, will be signicantly limited (Karchevsky, 2017).
At the same time, it should be emphasized that the main issue of criminal
law regulation in the eld of information resource formation is a clear and
consistent denition of the limits of opportunities for eective inuence on
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public relations by means of criminal law. The multidimensionality and scale
of the damage from the uncontrolled information space is beyond doubt.
However, it is hardly expedient to solve these problems by supplementing
the Criminal Code with new norms.
Proposals to impose penalties for various forms of manipulation of
public consciousness are controversial due to the projected ineciency
and declarativeness, their inconsistency with the principles of criminal-
political adequacy, as well as the proportionality of positive and negative
consequences of criminalization. In addition, the spread of global
information technology in general makes methods of restricting or banning
content less eective. The solution of the problem is beyond the scope of
criminal law regulation and, in our opinion, involves, rst of all, systematic
work in the eld of education and the formation of competitive information
products (Karchevsky, 2017).
The growing trend of cybercrime and the trend of «lagging behind»
social and legal control over it create an extremely great civilizational threat,
which can be overcome only through an organic combination of criminal law
and forensic strategies to combat this type of crime. Moreover, as E. Skulish
rightly points out, an important component of such a strategy should be
more transparent and operational international cooperation in this area,
as it is already obvious that it is impossible to control the transnational
component of cybercrime and cyberterrorism at the state level. In fact,
this set of problems must be addressed immediately by the international
community in the XXI century (Skulish, 2014).
In the modern information society, where cyber threats are widespread
and will continue to spread, it is important to constantly and systematically,
in a timely manner to take eective measures to combat cybercrime, as
well as to improve its methods and forms of prevention. This applies to
almost all spheres of public and state life, business and socio-humanitarian
environment. Given Ukraine’s course to enter the global information space,
V. Shemchuk expressed the belief that a national model for cybersecurity
of enterprises, institutions and organizations, including non-governmental
ones, needs to be built; coordination of eorts and interaction of law
enforcement agencies, special services, the judiciary, as well as their proper
stang and logistics, exchange of information on the prevention and ght
against cybercrime (Shemchuk, 2018).
It should be noted that in order to fulll its obligations to the European
Union, Ukraine is currently carrying out an unsystematic rule-making
process by amending and supplementing existing domestic legislation
instead of creating and developing basic regulations in the eld of
information law. In this light, the process of adaptation of Ukrainian
legislation creates even more legal conicts and gaps in the already
imperfect domestic legislative array.
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To sum up, cybercrime has become a challenge of the 21st century, which
can be combated only through joint eorts and not only at the interstate
level, but also within the state within the framework of cooperation
between the public and private sectors. Given the cross-border nature of
cybercrime, it requires the establishment of law enforcement cooperation
in the investigation of cybercrime at the operational level; creating and
ensuring the functioning of the mechanism for resolving jurisdictional
issues in cyberspace.
Along with the listed areas, the criminal law support of the ght
against cybercrime needs to be further improved, the implementation
of international standards into national legal norms. In addition, the
qualication of cybercrime has its own characteristics that must be taken
into account. These and other problems in the ght against cybercrime
are far from exhausted, they can be considered at international scientic
conferences, as well as be the subject of further research.
3.4. Detection and forensic support in the ght against
cybercrime in Ukraine
According to Part 3 of Article 7 of the Law of Ukraine «On operational
and investigative activities» detection as a type of activity precedes the
investigation (On Operational And Exploratory Activity: Law Of Ukraine,
1992).
Today in Ukraine it is possible to identify such subjects of operational
and investigative activities that directly or indirectly detect cybercrimes,
such as the National Police of Ukraine and the Security Service of Ukraine.
According to § 3 of the Cyber Security Strategy of Ukraine, the National
Police of Ukraine belongs to the National Cyber Security System as a body
that protects human and civil rights and freedoms, interests of society and
the state from criminal encroachments in cyberspace and implements
measures to prevent, detect, stop and disclose such crimes. As subjects of
cybercrime detection, structural units of the National Police can be divided
into two groups:
1) operational units of the Cyberpolice Department are directly obliged
to carry out operational and investigative activities by their own
methods in order to combat conventional crimes (responsibility
for which is actually provided by Articles 163, 176, 185, 190, 200,
301, 361-363-1 of the Criminal Code of Ukraine) (Criminal Code Of
Ukraine).
2) other operational units of the National Police (Department of
Criminal Investigation, or Department of Economic Protection, or
Department of Counteraction to Drug Crime, etc.) that counteract
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other, alternative to the Convention, crimes committed in cyberspace
and investigated by investigators of the National Police of Ukraine.
The Department of Cyberpolice in relation to such crimes can only assist
in the manner prescribed by applicable law, other units of the National
Police of Ukraine in the prevention, detection and cessation of criminal
oenses - ensures timely receipt of information about crimes committed in
cyberspace or related criminal intent
Units of counterintelligence protection of interests of the state in the
eld of information security, protection of national statehood of the
Security Service of Ukraine. The tasks of the Security Service also include
the prevention, detection, cessation and detection of crimes against peace
and security of mankind, terrorism, corruption and organized crime in the
eld of government and economy and other illegal actions that directly
threaten the vital interests of Ukraine.
From the standpoint of investigative practice, the procedural procedure
for initiating criminal proceedings continues from the moment when the
subject of investigation became aware of the source of circumstances that
may indicate a criminal oense, until he enters information into the Unied
Register of Pre-trial Investigations.
The internal organization of investigators at the beginning of
criminal proceedings will depend on two factors: legal and non-legal
(organizational). The legal factors that determine the forms of initiation of
criminal proceedings are related to the nature of the source of circumstances
that may indicate the commission of a certain type of criminal oense.
Peculiarities of using the functionality of operative-investigative activity for
the purpose of detecting a criminal oense are organizational factors that
determine the peculiarities of the form of initiation of criminal proceedings
for a particular type of crime (Samoylenko, 2020).
Scholars single out the following main organizational forms of
initiating criminal proceedings: 1) criminal proceedings were instituted
at the request of the victim / notication of a person about a criminal
oense (non-alternative form); 2) criminal proceedings were instituted
on the basis of materials of operational units obtained as a result of
verication of operational information (alternative form) - recognized the
complexity of the implementation of verication materials on minor and
moderate crimes, which explains the formality of non-alternative form
of proceedings; 3) criminal proceedings have been instituted within the
framework of the implementation of the materials of the operational search
case (non-initiative form) – its prevalence in relation to crimes committed
in cyberspace for political reasons, crimes that violate the established
order of certain things; 4) criminal proceedings were instituted as a result
of detecting a crime committed in cyberspace during the investigation
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of another criminal proceeding (initiative form) – its atypicality was
recognized, the investigator detects such crimes, usually by accident
(Samoylenko, 2020).
In order for information about the commission or preparation of a
cybercrime to have the prospect of a pre-trial investigation, it must be
conrmed by reliable sources for the investigator. An important component
of providing operational units with evidence in criminal proceedings on the
fact of cybercrime is the documentation of relevant facts, which is carried out
during both operational and investigative activities, and the implementation
of operational units instructions of the investigator, prosecutor to conduct
covert investigative (investigative) actions. The main operational search
methods for detecting criminal oenses in the eld of drug tracking are
as follows: controlled delivery; controlled and operational procurement;
establishing condential cooperation; intelligence survey; operational
monitoring.
The result of the documentation is the creation of documents that,
after appropriate assessment and verication by the investigator, the
prosecutor can be used as evidence in criminal proceedings. Such results
can be used both to provide evidence in specic criminal proceedings and
for other purposes established by the Criminal Procedure Code and the Law
of Ukraine «On operational and investigative activities» (Sakovsky and
Klimchuk, 2019).
It should also be noted that the detection of such criminal oenses
involves obtaining the most complete and reliable information about the
signs of preparation or commission of criminal oenses of this kind by
identifying the appropriate media. The main means of gathering evidence in
the eld of criminal justice are investigative (search) actions. The Criminal
Procedure Code of Ukraine explicitly states in Art. 93, which states that the
prosecution collects evidence by conducting investigative (investigative)
and covert investigative (investigative) actions, and the defense, the victim,
a representative of the legal entity in respect of which the proceedings
may initiate them by submitting to the investigator, prosecutor relevant
petitions (Criminal Procedural Code Of Ukraine, 2012).
In the course of such an investigative (search) action as a search, there
is a need for qualied detection, recording and removal of such information
or its media, taking measures to prevent external (external) inuence on
electronic traces of crime (eg, power outages, remote access to les and
system management, etc.), readiness of investigative bodies to promptly
conduct investigative (search) actions in other places where digital
information may be stored.
In our opinion, which is based on the results of the relevant survey of
practitioners, specic conditions for the search and seizure of electronic
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evidence should be introduced. First of all, we see the need to determine
the procedurally signicant possibility of copying data. Articles 16-18 of the
Cybercrime Convention need to be introduced into domestic law, namely
the immediate recording and subsequent storage of data by operators,
telecommunications providers, hosting providers, resource owners
(website, web pages, etc.) to ensure their integrity.
The implementation of the provisions of Article 19 (Search and Seizure
of Stored Computer Data) of the Convention on Cybercrime will increase
the eectiveness of cybercrime investigations by strengthening the ability
to copy, retrieve and block / arrest electronic data. Given the observance
of international standards for the protection of owners and users of such
information, it is necessary to ensure proper judicial review at the pre-trial
stage. Therefore, it is expedient to carry out the relevant procedural actions
on the basis of the decision of the investigating judge, the court, and the
factual data obtained in such ways to be considered admissible evidence in
criminal proceedings.
Of course, these are not all the problems that exist in the practice of
detecting and investigating cybercrime in Ukraine. Unfortunately, the
requirements for the scope of this type of work, such as a scientic article,
do not allow for a detailed analysis of this issue. At the same time, it will
encourage other scientists to nd ways to optimize the investigation of
cybercrime.
Conclusions
The scientic article outlines the features inherent in the criminal law
qualication of cybercrime, identies criminal law and forensic mechanisms
to combat cybercrime, developed proposals to improve existing legislation.
At the conceptual level, the search for ways to increase the eectiveness
of the ght against cybercrime is to resolve conicts in the eld of legal
regulation of the information space and create common rules for its use in
both private and corporate interests.
With the introduction of the institute of criminal oenses into the
national criminal legislation, the terms «cybercrime» and «computer
crime» have lost their relevance, which indicates the expediency of making
appropriate terminological changes to the Law of Ukraine «On Basic
Principles of Cyber Security of Ukraine» and other regulations. part of the
use of the term «cyber oense», which should be understood as a socially
dangerous crime in cyberspace and / or with its use, liability for which is
provided by the law of Ukraine on criminal liability and / or recognized as a
criminal oense by international treaties of Ukraine.
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Based on the existence in the Convention on Cybercrime and the Law
of Ukraine «On Basic Principles of Cyber Security of Ukraine» of the
concept of «cybercrime (computer crime)», it is necessary to change the
title of Chapter XVI of the Criminal Code of Ukraine «Crimes in the use
of computers», systems and computer networks and telecommunication
networks «on» Cybercrime».
In connection with the emergence of new types of computer crimes, the
provisions of the Criminal Code of Ukraine should be supplemented by the
following crimes: in the eld of nancial crimes: skimming, cash trapping,
carding; in the eld of e-commerce and economic activity – phishing; in
the eld of intellectual property: piracy, cardsharing; crimes in the eld of
information security.
Section XVI of the Criminal Code of Ukraine is also to be supplemented
by qualifying bodies for committing computer crimes by organized groups
and criminal organizations, increasing criminal liability in the use of ocial
position, not only to Article 362 of the Criminal Code of Ukraine, but also
to other provisions of the section. Due to the increased public danger, it is
advisable to qualify according to a set of rules – under Article XVI of the
Criminal Code of Ukraine and Article 255 of the Criminal Code of Ukraine
«Creation, management of a criminal community or criminal organization,
as well as participation in it».
Thus, the formation of an eective system for combating cybercrime
in Ukraine requires systematic measures at both the conceptual and
organizational and legislative levels: at the conceptual level – to identify
the main threats to cybersecurity and formulate measures to prevent and
prevent them; at the organizational level - to determine a single body for
operational management of all entities whose task is to ensure cybersecurity
(cyber units of law enforcement agencies) in peacetime, to create a system
of technological means of the national cybersecurity system, to establish
closer international cooperation; at the legislative level – to implement in
national legislation the Directive on Network and Information Security,
which sets out the general approach and rules of the European Union in
the eld of cybersecurity, and in the eld of criminal law – to streamline
legislation on the use of common terminology. In the information space in
order to comply with its international standards.
In order to increase the eectiveness of the investigation of cybercrime
by law enforcement agencies of Ukraine: argued the feasibility of active use
of operational and investigative sources of information about cybercrime;
proved the need to detail the legislation that would reect the provisions of
the Convention on Cybercrime, on obtaining electronic evidence, restricting
(blocking) a certain information resource (information service), specic
conditions of search and seizure of digital (electronic) evidence.
400
Valentin Kovalenko, Anatolii Kryzhanovskyi, Oleksandr Kolb, Svitlana Soroka y Halyna
Popadynets
Criminal law and forensic support in the ght against cybercrime
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Esta revista fue editada en formato digital y publicada
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Universidad del Zulia. Maracaibo-Venezuela
Vol.40 Nº 73
