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DOI: https://doi.org/10.34069/AI/2024.76.04.19

How to Cite:

Babikov, O., Smirnov, A., Chernysh, M., Syrovatka, S., & Pylypenko, I. (2024). Use of electronic search systems in the

investigation of corruption crimes in Ukraine: opportunities and challenges for human rights. Amazonia Investiga, 13(76), 236-246.

https://doi.org/10.34069/AI/2024.76.04.19

Use of electronic search systems in the investigation of corruption

crimes in Ukraine: opportunities and challenges for human rights

Використання електронних пошукових систем під час розслідування корупційних злочинів в

інтересах кримінального судочинства: можливості та загрози для прав людини

Received: March 1, 2024 Accepted: April 28, 2024

Written by:

Oleksandr Babikov1

https://orcid.org/0000-0003-4003-5198

Anton Smirnov2

https://orcid.org/0000-0002-1562-4591

Maryna Chernysh3

https://orcid.org/0009-0000-6416-7617

Serhii Syrovatka4

https://orcid.org/0009-0008-4547-533X

Ihor Pylypenko5

https://orcid.org/0000-0003-2098-1283

Abstract

The purpose of the article is to study the use of

electronic search systems during the investigation

of corruption crimes in the context of the balance

of interests of criminal justice and ensuring

guarantees of human rights and freedoms.

Methodology. In the process of scientific research,

the following methods were used: dialectical,

logical, dogmatic, monographic, systemic and

structural, comparative and legal, sociological,

legal modelling. Research results. It was

established that in accordance with the developed

and tested methods investigators use various

information systems when investigating on

corruption crimes; the content and features of

these schemes were studied. International

documents establishing the limits of the possible

use of artificial intelligence in criminal

proceedings were considered. The decisions of the

Анотація

Метою статті є дослідження використання

електронних пошукових систем під час

розслідування корупційних злочинів в

контексті балансу інтересів кримінального

судочинства та забезпечення гарантій прав і

свобод людини. Методологія. У процесі

наукових пошуків були використані наступні

методи: діалектичний, логічний, догматичний,

монографічний, системно-структурний,

порівняльно-правовий, соціологічний,

правового моделювання. Результати

дослідження. Встановлено, що відповідно до

розроблених та апробованих методик, під час

розслідування кримінальних проваджень про

корупційні злочини слідчі використовують

різноманітні інформаційні системи; вивчено

зміст і особливості застосування останніх.

Розглянуто міжнародні документи, які

Candidate of Legal Sciences, Professor of the Department of Criminal Law and Procedure of Kyiv National Aviation University

(Kyiv, Ukraine).

Candidate of medical Science, Associate Professor, President of Kharkiv Institute of medicine and biomedical sciences (Kharkiv,

Ukraine).

Ph.D in Law, Associate Professor of the Department of Criminal and Legal Disciplines of Dnipropetrovsk State University of Internal

Affairs (Dnipro, Ukraine).

Ph.D in Law, Associate Professor of the Department of Criminal and Legal Disciplines of Dnipropetrovsk State University of Internal

Affairs (Dnipro, Ukraine).

Candidate of Legal Sciences, Expert of analytical department of training of prosecutors of the Prosecutor’s Training Center of

Ukraine (Kyiv, Ukraine).

Babikov, O., Smirnov, A., Chernysh, M., Syrovatka, S., Pylypenko, I. / Volume 13 - Issue 76: 236-246 / April, 2024

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ECtHR on the need for a balanced approach to

interference with privacy and delimitation of such

interference, were studied. Practical

implementation. The ways to achieve a balance of

the interests of the parties in the criminal

procedural legislation of European countries were

investigated in order to implement their positive

experience in Ukraine. Value/originality. The

principles, on which the process of regulating the

use of electronic search systems, databases,

algorithms and artificial intelligence in the

criminal procedural legislation of Ukraine should

be based, are proposed.

Keywords: corruption crimes, criminal justice,

electronic search systems, ECtHR, human rights.

встановлюють межі можливого використання

штучного інтелекту у кримінальному

судочинстві. Вивчено рішення ЄСПЛ, які

стосуються необхідності збалансованого

підходу до втручання у приватного життя та

визначення меж такого втручання. Практичне

значення. Було досліджено шляхи досягнення

балансу інтересів сторін у кримінальному

процесуальному законодавстві країн Європи з

метою імплементації позитивного досвіду в

Україні. Цінність/оригінальність.

Запропоновано принципи, на яких повинен

базуватися процес регламентації використання

електронних пошукових систем, баз даних,

алгоритмів та штучного інтелекту в

кримінальному процесуальному законодавстві

України.

Ключові слова: корупційні злочини,

кримінальне судочинство, електронні

пошукові системи, ЕСПЛ, права людини.

Introduction

The use of databases, electronic search systems,

special technical means of removing

information, application of software complexes

and artificial intelligence for their

systematization and analysis is becoming more

widely used every year. Such means are

constantly being improved, and the trend of

digitalization of social relations is regularly

increasing sources of data for law enforcement

and intelligence agencies. In this regard, more

and more attention is drawn to the issues related

to ensuring the balance of the interests of

criminal justice and the rights and freedoms of

persons who experience intruding into private

life. In the context of the protection of human

rights and freedoms, automatic retrieval of

information and creation of databases on

individuals, regardless of whether they are the

objects of investigations, investigative or

intelligence activities, is of particular concern.

At the same time, little attention is paid to the

issues of preservation, use, destruction of

information that cannot be used in the interests of

law enforcement, guarantees of non-interference

or restrictions on interference in the private

sphere, and their legal regulation. Law-making

activity, the introduction of mechanisms of

supervision and control over the legality of the

accumulation and use of digital information, is

significantly lagging behind the processes of

improvement of technical means, used for this

purpose.

Therefore, the aim of our article is to study the

use of electronic search systems during the

investigation of corruption crimes in the context

of the balance of interests of criminal justice and

ensuring guarantees of human rights and

freedoms.

In view of the organizational problems of pre-

trial investigation, in particular the investigation

of corruption offenses, which affect its full and

prompt implementation, the application of AI is

justified and appropriate. In order to properly use

modern technologies, as well as avoid the breach

of human rights in the course of their application,

it is necessary to examine international legal

instruments governing this issue, study foreign

experience on this matter, clarify how this

problem is regulated in Ukrainian legislation and

formulate the respective conclusions and

recommendations.

Methodology

The methodological basis for the study is

dialectical method of scientific knowledge, on

the basis of which the examination of the

application of electronic search systems in the

investigation of corruption crimes is considered

as a multi-stage, complex and contradictory

process requiring proper regulation. Other

methods used in the article are:

Logical method (analysis, synthesis, induction,

deduction, analogy, etc.). It was applied for the

research of the process of proving the

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circumstances of the commission of a corruption

crime by performing a set of secret measures of

obtaining information (control over the

commission of crime, audio and video

monitoring, interception of telephone

conversations and other investigative actions, in

particular, the seizure and analysis of documents,

conducting interrogations, expert studies, etc.).

Dogmatic method helped to examine the content

of international legal instruments regulating the

limits of the possible use of artificial intelligence

in criminal justice (Convention for the Protection

of Individuals with Regard to Automatic

Processing of Personal Data, Recommendation

CM/Rec (2020)1 to Member States regarding the

impact of algorithmic systems on human rights,

Recommendation on the Ethics of Artificial

Intelligence, etc.).

Monographic method made it possible to

consider the works of the scholars, who

investigated the issues of using electronic search

systems and ensuring the balance of State

interests and guarantees of human rights and

freedoms during this process.

System and structural method was useful when

studying informational systems used by the

investigators during the investigation of criminal

proceedings on corruption crimes (Unified State

to Perform the Functions of the State or Local

Self-Government; information System “Arkan”;

information and telecommunication System

“Hart 1”; databases of the State Migration

Service of Ukraine; State Registry of Real

Property Right; Unified State Register of

Vehicles; “Safe City” et al.).

With the help of comparative and legal method

the rules of criminal procedural legislation of

other countries ensuring a balance of the interests

of criminal justice and guarantees of human

rights and freedoms in the course of electronic

search of information were reviewed (Germany,

Great Britain, China, Singapore).

Sociological methods were applied when

studying the decisions of the ECHR on this topic

(Szabó and Vissy v. Hungary (2016); Centrum

för rättvisa v. Sweden (2021); Tretter and others

v. Austria (2010); Ringler v. Austria (2010);

“Azer Ahmadov v. Azerbaijan” (2021); “Big

Brother Watch and Others v. the United

Kingdom” (2021)).

Legal and modelling method was used for

determining the principles of regulating the

application of electronic search systems,

databases, algorithms and artificial intelligence

in criminal procedural legislation.

Literature Review

The issues of using electronic search systems,

ensuring the balance of State interests and

guarantees of human rights and freedoms are the

object of the research by a number of recognized

experts and scientists. In particular, Hans Born

and Aidan Wills (2012) examined them in the

activities of intelligence services.

Cahn and Veiszlemleinin (2020) studied these

problems within the application of digital

technologies to monitor human movement,

which were used during the COVID-19

pandemic. The authors stated that different biases

in various types of surveillance operations should

be taken into account as they may result in

significant discrimination.

The issue of ensuring the rights and interests of

the person under “digitalization” of criminal

proceedings became the subject matter of

scientific research in the work by Demura,

Klepka and Krytska (2020). The article identifies

and characterizes perspective vectors of digital

transformation of pre-trial investigation through

the prism of ensuring the rights and legitimate

interests of the individual.

The research by Kaplina, Raimundas and

Shumylo (2019) deals with the topical for

modern science of criminal procedural law and

law enforcement practice question of use in

criminal procedure digital evidence.

Kireeva, Makhlai and Basalyk (2023) studied the

issue of using of databases in the work of a

criminal analyst of an operational search unit.

They provided the concept of information-

analytical system and characterized the main

databases used by criminal analysts in their daily

work and the procedure for their application.

Problematic issues related to the use of electronic

evidence in the criminal procedural law of

Ukraine were considered by Anheleniuk (2023).

The Author draws special attention to the

shortcomings of the regulation of the electronic

evidence use in the legislation of Ukraine and the

possibilities of their overcoming.

The monography by Skrypnyk (2022) is devoted

to the use of information from electronic media

in criminal procedural evidence. The author

analysed theoretical foundations and foreign

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experience of using digital information in

criminal procedural evidence. The emphasize is

placed on digital information as a means of proof

under the criminal procedural legislation of

Ukraine.

Despite a significant number of works, the key

theoretical and practical aspects of the use of

databases on the benefit of criminal justice when

investigating corruption offences have not yet

been covered. The reason for this is the lack of

comprehensive scientific work aimed at

highlighting and finding solutions to the most

significant problems in this area.

Results and Discussion

The conventions of the UN and the Council of

Europe emphasize the need for law enforcement

agencies to have effective means of effective

means of evidence collection, with the possibility

of conducting covert surveillance, the use of

special investigative tools, access to financial

information, means of detecting, tracking and

seizing proceeds of crime. Accordingly,

specialized bodies to combat corruption have

special powers that are not available to ordinary

law enforcement officers. At the same time, the

implementation of such broad powers should be

carried out in compliance with international

human rights standards and be subject to external

control (OECD, 2007).

Ensuring objective and comprehensive

investigation of the circumstances of corruption

crimes requires the prosecution to direct the

investigation in such main areas as:

1) establishing the circumstances of the wrongful

benefit, the wrongful removal/misappropriation

of funds, property, providing preferences to third

parties, which is defined as the direct object of

the evidence of elements of a criminal offence;

2) investigation of the suspect’s life style, his or

her circle, the range of his (her) responsibilities,

ownership of assets, including those held by

front-line persons, which enables to reveal other

facts of corrupt acts and enforce the sentence on

the confiscation of property; 3) taking measures

to locate the person suspected of committing a

corruption criminal offense and is evading

investigation and trial.

Proving the circumstances of the commission of

a corruption crime is carried out by conducting a

complex of covert measures for obtaining

information: control over the commission of

crime, audio and video monitoring, interception

of telephone conversations and other

investigative actions, in particular, the seizure

and analysis of documents, conducting

interrogations, expert studies, etc.

Establishing the facts of corruption, the

circumstances contributing to it, as well as

investigation of the suspect’s lifestyle, his or her

circle, ownership of assets and his (her)

whereabouts in case of evading the investigation

and trial, requires first of all the use of

investigative measures involving electronic

resources to obtain information. A significant

part of information about the person, his (her)

lifestyle, connections, status is contained in open

sources (Internet), as well as in special software

complexes and databases of law enforcement

agencies, State institutions, and commercial

enterprises.

According to the developed and tested methods,

in the investigation of corruption crimes,

investigators use various information systems:

the Unified State Register of Legal Entities,

Individual Entrepreneurs and Public

Organizations containing information on

registered business entities, ownership structure,

including beneficiaries;

The Unified State Register of Declarations of

Persons Authorized To Perform The Functions

Of The State Or Local Self-Government, where

the information on property, income, expenses,

financial obligations, private interests of all

public servants can be found;

The Information System “Arkan” and the

Information and Telecommunication System

“Hart 1” are used to establish the fact of crossing

the state border of Ukraine, as well as the vehicle

and persons who crossed the border with the

suspect;

Application of the databases of the State

Migration Service of Ukraine allows the

investigators receive information on the

provision of any administrative services,

including those related to the issuance or

exchange of passport or temporary residence

document.

State Registry of Real Property Right provides

information on real estate objects owned by the

person on the property rights, are either leased or

otherwise entitled to use.

The subdivisions of the Ministry of Internal

Affairs receive information regarding the

possession of vehicles from the Unified State

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Information on the person’s travel routes, in

particular using vehicles, can be obtained upon

the request from the “Safe City” information

system.

Information about mobile terminal telephone

connections is obtained for the purpose of

establishing contacts and location during

communication. Business entities providing

services related to the delivery of correspondence

may, can, upon request, present necessary

information for the purpose of establishing the

telephone numbers used by the person or his

(her) location, addressees of postal

correspondence.

Profiles in social networks are also investigated

to establish the photo and video materials, other

information that can be used to determine the

persons’ location and connections.

On behalf of investigators and prosecutors,

National Agency of Ukraine for finding, tracing

and management of assets derived from

corruption and other crimes (ARMA) is

authorized to collect information about the

person’s assets. ARMA has access to

information, documents, automated information

and reference systems, registers and data banks

that are at the disposal of local self-government;

data on the availability and status of accounts,

transactions in banking institutions, professional

capital market participants, organized

commodity markets, foreign States agencies,

enterprises, institutions and organizations,

including banks, depository and financial

institutions, private executors, auditors, notaries,

appraisers, as well as experts, arbitration

managers, liquidators, persons authorized by the

Fund for Guarantee of Deposits of Natural

Persons.

ARMA can receive information in an automated,

remote mode and perform analysis of open data

sources (OSINT) both in Ukraine and abroad. It

also gets access to paid databases, uses

information from social networks, mass media,

journalistic information and other data from open

sources. The basis for collecting and analysing

information is a written request from an

investigator, prosecutor or head of a pre-trial

investigation body (Babikov et al., 2024).

The application of the “ANDE RAPID DNA”

system enables law enforcement agencies to

perform automated interpretation of DNA

identifiers directly at the scene, as well as their

profiling in less than two hours, which is actively

used by investigative units of the National Police

and Security Service for the purpose of

identifying the person. With the help of this

equipment, it is possible to examine samples of

epithelium from the oral cavity, blood stains,

saliva, other biological traces from objects

touched by the person.

The information subsystem “BLOKPOST”

provides an opportunity (based on the relevant

request), to search for the person on the territory

of Ukraine by guiding and providing access to

information about the wanted person to all police

officers on their own technical devices.

A significant amount of information about the

person is also contained in the search systems of

technological IT giants: Google, Facebook,

Apple, Microsoft, which accumulate and store

information about the user’s location, behavior,

requests, income, political views, racial and

ethnic affiliation, correspondence and metadata

text messages (Forklog, 2020).

The information accumulated in the “Diia”

electronic application makes it possible to

explore a fairly wide range of issues related to

social behaviour: bringing to administrative

responsibility, participation in legal proceedings,

existence of enforcement proceedings, tax debt.

Taking into account that the entry to the "Diya"

application is related to the provision of banking

services, such as “Privat24”, it is additionally

possible to establish the IP addresses from which

the person entered with the verification of his

(her) identity.

Along with this, information gathering can be

carried out by using malicious software, the

application of which is performed by separate

installation on the computer equipment of the

subject of the investigation, with the aim of

obtaining information contained on his (her)

devices or using them as covert means of

receiving and recording audio and video

information on the content of conversations or

events occurring around such a device by

unauthorized activation of the user’s microphone

and webcam.

It is the amount of information contained in

electronic information systems, databases, as

well as obtained from other technical means and

software complexes, that determines the need to

use certain algorithms and artificial intelligence

to optimize the search and systematize data

important for criminal proceedings.

This led to the spread of OSINT information

search systems, implementing the technology of

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data collection and analysis from open sources,

which is used in the interests of criminal justice

by law enforcement officers.

OSINT is positioned as an exploration among

available sources covering any information. The

data about person, business entity can be

obtained on legal grounds from free public

sources. Generally, it is information from the

Internet, but can also include data contained in

open libraries, newspaper articles, press releases,

and stored on various types of media. Based on

the form of fixation, the search objects can be

texts, film, photo, video recordings, materials

located on websites about webinars, public

events, conferences (Softlist, 2022).

The main sources of information, which help to

create a profile of the object, are social networks,

blogs, video hosting, forums, magazines,

newspapers, television, radio, public materials of

state structures, publicly available observations,

reports, articles, reports, conferences, and

information with limited access (regarding

banking transactions, telephone connections,

travel routes, real estate owned or used by a

person, or people of his (her) circle and

connections).

On the basis of the profile, pre-trial investigation

bodies can establish the whereabouts, hidden

assets, possible accomplices who facilitated or

directly participated in the commission of corrupt

acts, as well as receive other information that is

not directly related to the subject matter of pre-

trial investigation, but is related to private life

and is sensitive for the person.

At the same time, according to the legislation of

Ukraine, just the access to information on

telephone connections and removal of

information from electronic information systems

and their parts, the access to which is restricted

by logical protection system without the

knowledge of the owner or user, requires the

permission of the investigating judge; the

implementation of other means does not need

such authorization. The rest of the information

from the databases can be obtained either at the

request of the investigator, the prosecutor,

directly through an electronic office, or by

examining mobile devices, including using

portable hardware and software complexes for

forensic research, which allows to extract,

decode and analyse evidence.

Therefore, acquisition and recording significant

amount of electronic information for the benefit

of criminal justice in Ukraine is outside the scope

of judicial control, and the development of

technologies for collecting electronic evidence is

substantially ahead of the regulation of such

activities by criminal procedural legislation.

It should be noted that the ECHR has repeatedly

emphasized the need for a balanced approach to

the interference in private life and defining its

limits.

In the case of Szabó and Vissy v. Hungary

(2016), which concerned Hungarian legislation

regulating secret anti-terrorist surveillance for

national security purposes (in particular, “section

7 / E (3) Surveillance”), the applicants

complained that they could be subjected to

unreasonable and to offensive measures; the

introduced regulations do not rule out abuse in

the absence of judicial control.

The court, recognizing the violation of Article 8

of the Convention, stated that under current

conditions, the fight against terrorism requires

the government to resort to advanced

technologies, including those enabling mass

surveillance of citizens’ telecommunications to

prevent crimes. Such wiretapping, given new

technologies that allow the government to easily

intercept masses of data, even on individuals

outside the primary range of operations, could be

applied to any Hungarian citizen. Besides, the

Court drew attention to the fact that the

permission to carry out the mentioned measures

took place within the scope of the executive

power, without assessing whether the

interception of communications is strictly

necessary in the absence of a judicial.

Accordingly, in the opinion of the Court,

Hungarian legislation did not provide safeguards

to prevent abuse.

Notably, the Court also stated that there had been

no violation of Article 13 (right of an effective

remedy) of the Convention along with Article 8,

reiterating that Article 13 could not be interpreted

as requiring a remedy against the state of

domestic law.

In terms of determining the procedure for access

to biological samples, in addition to the generally

recognized objects (blood, saliva, nails, hair,

sperm, suturing agent, bucal epithelium etc.), it

also refers to fingerprints, handwriting, speech

and voice of a person, traces of a person’s scent

and others.

This view is primarily due to the fact that the

purposeful search and collection of information

about a person and his (her) life as an

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intervention in the most sensitive sphere, requires

a balanced approach.

There are a number of other cases related to

complaints about the collection and processing of

personal data by law enforcement authorities

brought before the ECtHR: Centrum för rättvisa

v. Sweden (2021): a non-profit public interest

law firm complains about Swedish state law

concerning the secret surveillance of citizens;

Tretter and others v. Austria (2010). The case

concerns amendments to the Law on State

Authorities in Police Affairs, which entered into

force in January 2008 and expanded the powers

of law enforcement agencies to collect and

process citizens’ personal data;

Ringler v. Austria (2010) deals with the violation

of the right to respect for private life and

correspondence, the right to an effective remedy

in similar matters.

In the case “Azer Ahmadov v. Azerbaijan”

(2021), the Court drew attention to the fact that

conduct of secret measures for obtaining

information must contain personal data of the

person in respect of whom they are conducted.

Otherwise, it violates his (her) right to privacy

guaranteed by the Convention.

In the case “Big Brother Watch and Others v.

the United Kingdom” (2021), the applicants – 3

non-governmental organizations, a researcher,

working internationally in the field of privacy

and freedom of expression, and investigative

journalists, alleged that they were likely subjects

of surveillance by the UK intelligence services.

Their fears sparked media interest after Edward

Snowden’s revelation, who is the former system

administrator for the US National Security

Agency (NSA).

During the consideration of the case, the Court

examined three aspects of monitoring:

1) large-scale interception (monitoring) of

telecommunications;

2) exchange of received intelligence

information between the countries;

3) receiving communication data (billing

information) from telecommunications

operators and providers.

In the Decision, the Court stated that in

accordance with the national legislation of the

Great Britain, there were certain stages of the

monitoring process, which included: interception

of messages transmitted by telecommunications

channels; real-time application of filters to

determine the significance of intercepted

information; analysis of selected and stored

material by an analyst.

The ECtHR previously found no abuses on the

part of the United Kingdom’s intelligence

services; however, it identified insufficient

independent oversight of the selection and

retrieval processes, in particular information

filtering criteria for subsequent selection and

verification of intercepted data.

Following this, the court concluded that the

national legislation did not meet the requirement

of the “quality of law” and the criterion of

“necessity in a democratic society”.

As for the receipt of billing information from

telecommunications operators, the ECtHR drew

attention to the fact that the legislation of the

European Union requires such procedure to be

limited to the purpose of combating serious

crime, and access to such data had to be

previously authorized by a court or other

independent administrative body.

And in this matter, the domestic legislation of

Great Britain turned out to be inappropriate,

since it did not contain such guarantees, and the

ECtHR did not find any violations in the existing

procedure for exchanging intelligence

information.

Non-governmental organizations have also

repeatedly criticized experiments with the use of

algorithms in criminal proceedings for the

purpose of characterizing the person, on which

the reservation in the European Ethical Charter

on the use of artificial intelligence (AI) in judicial

systems and their environment on the use of such

algorithms with special restrictions is based.

Therefore, it is necessary to highlight two key

issues in the context of research on the regulation

of electronic search, collection and use of

information on the person in criminal

proceedings: 1) ensuring the balance between the

interests of criminal proceedings and the

guarantees of human rights and freedoms; 2) the

limits of the possible use of algorithms, artificial

intelligence for obtaining conclusions, individual

profiles of a person, the influence of such

information on making legal decisions in

criminal proceedings.

To some extent, the issue of the balance of

interests in the criminal procedural legislation of

European countries has found its solution. Thus,

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in the Federal Republic of Germany (FRG), the

search measures of law enforcement agencies

have been formally defined as some form of tacit

measures of obtaining information under the

name “electronic search”.

Chapter VIII “Seizure, control of

telecommunications, computer search for

possible offenders based on common indicators,

application of technical means, use of undercover

investigators and searches” of the German

Criminal Code (Federal Ministry of Justice,

1998) of the Federal Republic of Germany

defines system of secret measures of information,

which includes: 1) seizure (the objects of which

among others include computer files, electronic

messages); 2) automatic comparison and transfer

of personal data; 3) comparison of information

for the investigation of the criminal act;

4) seizure of postal and telegraphic dispatches;

5) control of telecommunications; 6) measures

applied without knowledge of the person to

whom they apply (recording of conversations in

publicly inaccessible places); 7) statements made

in private outside housing; 8) receiving

information about communication within the

framework of telecommunications; 9) other

measures applied without the knowledge of the

person to whom they relate (monitoring);

10) measures applicable to mobile phones.

At the same time, such a measure as an online

search using special software is not an element of

the criminal procedure; it is regulated by other

federal laws.

Automatic comparison and transfer of personal

data, which involves the collection and analysis

of information on the person from various

databases, can be applied in cases where there are

grounds to believe that a criminal act of a

significant degree of danger has been committed.

Investigating the grounds for conducting such a

measure, one should note a key criterion for

recognizing the legality of interference in private

life. Thus, the Constitutional Court of the Federal

Republic of Germany, on the basis of an analysis

of the content of secret forms of obtaining

evidence in criminal proceedings, drew attention

to the fact that when using the obtained evidence

the first line of reference is to determine in which

area such interference occurred and distinguished

the following spheres: 1) social sphere (business

relationships); 2) private sphere (private

conversations, actions and communication in the

domestic sphere, etc.); 3) intimate sphere

(Holovnenko & Spitza, 2012).

Social contacts in the first sphere do not require

special protection. In the second area, the

interests of criminal proceedings must be

weighed against the protection of the private.

Interference in the intimate sphere is prohibited.

That is, the principle of proportionality is defined

as one of the key criteria in the criminal

procedural legislation of the Federal Republic of

Germany when clarifying the existence of

grounds for conducting special investigative

actions.

The collection and accumulation of information

in Great Britain for the benefit criminal justice is

regulated by the Investigative Powers Act

(Legislation, 2016), which gives broad powers to

law enforcement agencies to collect, store, and

analyse information, including the right to access

banking, commercial information, intrusion into

telephones, computers, as well as mass

accumulation of personal data, including data on

visits to certain Internet resources with the

approval of the judge. A limited circle of law

enforcement officials authorized to carry out

such measures is also defined, and criminal

liability for the abuse of such powers is

established.

Analysis of the activities of law enforcement

agencies of several other countries of the world

authorized to prevent and combat corruption

indicates that they use a wide range of databases

and sources of electronic information in their

activities.

Thus, the Independent Commission Against

Corruption (Hong Kong) has the right to follow

up on a court order and detect illegal financial

transactions and assets hidden by a corrupt

person in any form. These powers include

checking bank accounts, conducting searches

and seizing documents, as well as the right to

require suspects to provide detailed information

about their assets, income and expenses.

Special investigators of the Bureau for the

Investigation of Corruption (Singapore)

following the instructions of the prosecutor, the

Director of the Bureau for Special Powers, may

obtain access to the bank’s documentation,

request any information on property in use or

belonging to him or her or close persons, bank

transfers or cash withdrawals, collect and analyse

information on business activities, etc. (OECD,

2007).

Considering the aspects of searching, collecting

and using information on the person on the

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benefit of criminal justice, an extremely

important trend of spreading the use of artificial

intelligence during such activities and the

consequences of the risks involved should be

taken into account. As noted by the Secretary

General of the Council of Europe Marija

Pejčinović Burić, artificial intelligence is already

with us: it changes the information we receive,

influences our choices, and in the nearest future

it will influence the work of governments and

state institutions even more. Artificial

intelligence presents both benefits and risks. The

role of the Council of Europe is to ensure the

protection and development of human rights,

democracy and the rule of law in the digital

environment (Council of Europe, 2023).

Determining the limits of the possible use of

artificial intelligence in criminal justice remains

quite problematic; however, the first steps of

regulation the development of the basic

principles of its use have already been taken at

the international level.

Thus, the Convention for the Protection of

Individuals with Regard to Automatic Processing

of Personal Data (Council of Europe, 1981)

introduced the basic principles of data protection,

including: integrity of data collection and

processing; their storage only for specified and

lawful purposes; non-use in a manner that is

incompatible with these purposes; to be

adequate, appropriate and not excessive in

relation to the purposes for which they are stored;

to be kept in a form allowing the identification of

data subjects no longer than is necessary for the

purposes of storage. However, there is a

reservation that even in the interest of criminal

proceedings automated processing of data on

racial affiliation, political, religious or other

beliefs, as well as data relating to health and

sexual life is prohibited, if domestic legislation

does not provide appropriate guarantees (Article

6 of the Convention).

As involving AI in the sphere of justice raises a

number of ethical issues, an important

international act governing them was adopted –

the European Ethical Charter on the use of

Artificial Intelligence in judicial systems and

their environment (European Commission for the

Efficiency of Justice, 2018). The main purpose of

the Charter is to increase the efficiency and

quality of the administration of justice by

processing the algorithms of court decisions and

data while respecting the basic rights and

freedoms guaranteed by the ECHR and the

Council of Europe Convention on the Protection

of Personal Data.

The Charter establishes five principles regarding

the use of artificial intelligence in the

administration of justice:

− the principle of observing basic human

rights when using AI.

− the principle of non-discrimination, namely

prevention of any discrimination between

individuals or groups of individuals.

− the principle of quality and security, which

requires the processing of court decisions

and data in a secure technological

environment.

− the principle "under the control of the user".

− the principle of transparency, impartiality

and fairness.

Based on the mentioned Convention, the

Committee of Ministers of the Council of Europe

issued Recommendation CM / Rec (2020) 1 to

Member States regarding the impact of

algorithmic systems on human rights, which

provides guidelines and the algorithm of

necessary actions for effective protection of

human rights and personal data. The measures

provide for the legislative regulation of issues of

access and use of information and the obligation

of users and processors of personal data to submit

adequate documentation to verify compliance

with the law.

In addition, the Recommendation on the Ethics

of Artificial Intelligence (UNESCO 2021)

proposed the following basic conditions for the

use of artificial intelligence, particularly those

that may apply to criminal justice: 1) privacy

must be respected, protected and encouraged at

all stages of the use of artificial intelligence

systems. The collection, use, transfer, storage

and removal of data in such systems is carried out

taking into account the standards of international

law, regional and national norms; 2) the

framework principles of data protection and their

management mechanisms should be developed

on the basis of the principles of multi-stakeholder

interest, protected by judicial systems, and based

on international principles of data protection and

standards regarding the collection, use and

disclosure of personal data, provided that there

are legal purpose and the appropriate legal basis

for processing; 3) algorithmic systems require

pproperly assessing the privacy implications, and

the actors of artificial intelligence are obliged to

ensure accountability in the development and

implementation of such systems, protecting

personal information throughout the life cycle of

such systems; 4) the control of artificial

intelligence systems is not just about control by

individual persons, but also, in necessary cases,

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inclusive control by society; 5) delegating the

control of artificial intelligence systems can be

limited in number and do not deal with crucial

issues; 6) the transparency and comprehensibility

of such systems is a guarantee of the realization

of the right to a fair trial; where there are

substantial risks of adverse effects on human

rights, the principle of transparency may be the

basis for the disclosure of algorithms or

databases.

Conclusion

The use of electronic search systems during the

investigation of corruption crimes is an effective

tool contributing to the performance of criminal

justice tasks, which provides quick, objective

investigation of the circumstances of the case,

establishes the whereabouts of the person,

evading pre-trial investigation and trial,

identifies assets and ensures execution of

punishment through confiscation of property.

Along with this, such activity is related to

interference in private life and significantly

limits human rights and freedoms. Accordingly,

the use of electronic search systems, databases,

algorithms and artificial intelligence is subject to

detailed regulation in criminal procedural

legislation, taking into account such principles

as:

1) Balancing the interests of the criminal

justice system and human rights and

freedoms, thus limiting, collecting and using

information as an exceptional measure due

to the gravity of the offence;

2) decision on permission to search for, collect

and use private information must be

considered as a form of tacit receipt of

information with the introduction of an

appropriate judicial control;

3) application of algorithms, artificial

intelligence for searching, collecting and

analysing information cannot replace a

person, whose sphere of control includes

interpretation and conclusions regarding the

information obtained;

4) misuse of databases by law enforcement

agencies, software complexes allowing

interference in the person’s private life,

including their application without

necessary legal grounds, is subject to

criminalization, and results obtained shall

not be admissible as evidence of guilt.

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