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The aim of the article is to prepare an analysis in order to formulate propositions regarding the digitalisation of Polish criminal proceedings as regards the administration of justice. These hypotheses would have merited consideration even pre-pandemic, but they demand even more attention as a result of the pandemic. The pandemic has served to highlight the pre-existing necessity to adapt criminal law to the latest observable technical and technological advances. In light of the above, the first issue to be analysed concerns the conditions, procedures, and possibilities surrounding the collection of evidence electronically, taking into account the most recent relevant guidelines of the Council of Europe. The second issue to be examined will be the adaptation of criminal procedures, including Polish, to the standards stipulated in the Convention of the Council of Europe on Cybercrime of 23 November 2001, in light of national norms regarding evidence gathering. The third issue that will be assessed in this study will be the benefits, risks, or potential of the application of artificial intelligence algorithms in criminal procedure. The consideration of each of the three areas will have regard to the present global pandemic. The article concludes with a concise summary containing the authors' conclusions and propositions de lege ferenda. ; Karol Karski: k.karski@wpia.uw.edu.pl ; Bartłomiej Oręziak: b.oreziak@uksw.edu.pl ; Karol Karski is a Professor at the Department of International Public Law, Faculty of Law and Administration, University of Warsaw, Poland. ; Bartłomiej Oręziak is a PhD Candidate and an Assistant at the Department of Human Rights Protection and International Humanitarian Law, Faculty of Law and Administration, Cardinal Stefan Wyszyński University, Poland. ; Karol Karski - University of Warsaw, Poland ; Bartłomiej Oręziak - Cardinal Stefan Wyszyński University in Warsaw, Poland ; André A., The Information Technology Revolution in Health Centre, (in :) A. André (ed.), Digital Medicine, Cham 2019. ; Boni B., Creating a Global Consensus Against Cybercrime, "Network Security" 2001, no. 9. ; Boratyńska K., M. Królikowski, Komentarz do art. 167, (in) A. Sakowicz (ed.), Kodeks postępowania karnego. Komentarz, Warszawa 2016. ; Bowrey K., Ethical Boundaries and Internet Cultures, (in:) L. Bently, S. Maniatis (eds.), Intellectual Property and Ethics, London 1998. ; Bradley C., Intent, Presumptions, and Non-Self-Executing Treaties, "The American Journal of International Law" 2008, no. 102(3). ; Brenner S., Schwerha J., Introduction-Cybercrime: A Note on International Issues, "Information Systems Frontiers" 2004, no. 6(2). ; Byrski J., Oprogramowanie zawierające elementy sztucznej inteligencji. Wybrane zagadnienia prawne, (in:) P. Kostański, P. Podrecki, T. Targosz (eds.), Experientia Docet. Księga jubileuszowa ofiarowana Pani Profesor Elżbiecie Traple, Warszawa 2017. ; Chłopecki A., Sztuczna inteligencja – szkice prawnicze i futurologiczne, Warszawa 2018. ; Clough J., A world of difference: The Budapest Convention on Cybercrime and the challenges of harmonization, "Monash University Law Review" 2014, no. 40(3). ; Coleman C., Security Cyberspace – New Laws and Developing Strategies, "Computer Law and Security Report" 2003, no. 19(2). ; Dębowski J., O klasycznej koncepcji prawdy i jej filozoficznych podstawach. Czy w Matrixie możliwa jest prawda?, (in:) A. Kiklewicz, E. Starzyńska-Kościuszko (eds.), Oblicza prawdy w filozofii, kulturze, języku, Olsztyn 2014. ; Elenko E., L. Underwood, D. Zohar, Defining digital medicine, "Nature biotechnology" 2015, no. 33(5). ; Filipkowski W., L. Picarella, Criminalizing Cybercrimes: Italian and Polish Experiences, "Białostockie Studia Prawnicze" 2021, no. 26(3). ; Gercke M., The Convention on Cybercrime, "Multimedia und Recht" 2004, no. 20. ; Grez P., Pacta sunt servanda, "Revista Actualidad Juridica" 2008, no. 18. ; Hofmański P., Wielka reforma Kodeksu postępowania karnego 2013, "Forum Prawnicze" 2013, no. 4(8). ; Jabłońska-Bonca J., O prawie, prawdzie i przekonywaniu, Koszalin 1999. ; Jackson J., Two methods of proof in criminal procedure, "The Modern Law Review" 1988, no. 51(5). ; Jankowska M., Podmiotowość prawna sztucznej inteligencji?, (in:) A. Bielska-Brodziak (ed.), O czym mówią prawnicy mówiąc o podmiotowości, Katowice 2015. ; Jodłowski J., Zasada prawdy materialnej w postępowaniu karnym. Analiza w perspektywie funkcji prawa karnego, Warszawa 2015. ; Judycki S., O klasycznym pojęciu prawdy, "Roczniki Filozoficzne" 2001, no. 49. ; Judycki S., Prawda i kryterium prawdy: korespondencja, koherencja, praktyka, "Kwartalnik Filozoficzny" 1999, no. 28. ; Karska E., Karna jurysdykcja krajowa a międzynarodowa, (in:) J. Kolasa (ed.), Współczesne sądownictwo międzynarodowe, Vol. II ("Wybrane zagadnienia prawne"), Wrocław 2010. ; Karska E., Międzynarodowe prawo karne, (in:) B. Hołyst, R. Hauser (eds.), Wielka Encyklopedia Prawa, vol. IV: J. Symonides, D. Pyć (eds.), Międzynarodowe prawo publiczne, Warszawa 2014. ; Katyal N., Criminal Law in Cyberspace, "University of Pennsylvania Law Review" 2001, no. 149(4). ; Klejnowska M., Kłak C., Sobolewski Z., Proces karny. Część ogólna, Warszawa 2011. ; Kmiecik R., Dowód ścisły w procesie karnym, Lublin 1983. ; Lessig L., Resnick P., Zoning Speech on the Internet: A Legal and Technical Model, "Michigan Law Review" 1999, no. 98(2). ; Lupton D., The digitally engaged patient: Self-monitoring and self-care in the digital health era, "Social Theory & Health" 2013, no. 11(3). ; Maceratini A., New Technologies between Law and Ethics: Some Reflections, "Białostockie Studia Prawnicze" 2021, no. 26(3). ; Marion N., Symbolic Policies in Clinton's Crime Control Agenda, "Buffalo Criminal Law Review" 1997, no. 1. ; Moitra S., Developing Policies for Cybercrime, "European Journal of Crime, Criminal Law and Criminal Justice" 2005, no. 3(3). ; Murzynowski A., Istota i zasady procesu karnego, Warszawa 1976. ; Nuth M., Taking Advantage of New Technologies: For and Against Crime Computer Law and Security Report, "Computer Law & Security Review" 2008, no. 24. ; Partridge D., A New Guide to Artificial Intelligence, New Jersey 1991. ; Paust J., Self-executing treaties, "The American Journal of International Law" 1988, no. 82(4). ; Reidenberg J., Technology and Internet Jurisdiction, "University of Pennsylvania Law Review" 2005, no. 153(6). ; Rejmaniak R., Bias in Artificial Intelligence Systems, "Białostockie Studia Prawnicze" 2021, no. 26(3). ; Renda A., Artificial Intelligence. Ethics, governance and policy challenges. Report of a CEPS Task Force, Brussels 2019. ; Resseguie D., Computer Searches and Seizure, "Cleveland State Law Review" 2000, no. 48(185). ; Shapiro A., The Internet, "Foreign Policy" 1999, no. 115. ; Shaw M., International Law, Leicester 2008. ; Silverman A., Mind, Machine, and Metaphor. An Essay on Artificial Intelligence and Legal Reasoning. Boulder, Colorado 1993. ; Socha E., Zakres włączenia katalogu zbrodni objętych jurysdykcją Międzynarodowego Trybunału Karnego do polskiego prawa karnego materialnego, "Przegląd Sejmowy" 2007, vol. XV, no. 5(82). ; Socha E., Stosunek jurysdykcji Międzynarodowego Trybunału Karnego do sądów krajowych, "Przegląd Czerwonokrzyski" 2002, no. 3–4. ; Speer L., Redefining Borders: The Challenges of Cybercrime, "Crime, Law and Social Change" 2000, no. 34. ; Stolz A., Congress and Capital Punishment: An Exercise in Symbolic Politics, "Law and Policy Quarterly" 1983, no. 5(2). ; Strogowicz M., Prawda obiektywna i dowody sądowe w radzieckim procesie karnym, Warszawa 1959. ; Swire P., Elephants and Mice Revisited: Law and Choice of Law on the Internet, "University of Pennsylvania Law Review" 2005, no. 153(6). ; Talimonchik V. P., The Prospects for the Recognition of the International Legal Personality of Artificial Intelligence, "Laws" 2021, no. 10(4)(85). ; Tang A., Tam A., Cadrin-Cheenevert B., Guest W., Chong J., Barfett J., Chepelev L., Cairns R., Ross J., Cicero M., Poudrette M., Jaremko J., Reinhold C., Gallix B., Gray B., Geis R., Canadian Association of Radiologists White Paper on Artificial Intelligence in Radiology, "Canadian Association of Radiologists Journal" no. 69(2). ; Waltoś S., Zasada prawdy materialnej, (in:) P. Wiliński (ed.), System Prawa Karnego Procesowego, Warszawa 2014. ; Wielec M., Wartości – Analiza z perspektywy osobliwości postępowania karnego, Lublin 2017. ; Winick R., Searches and seizures of computers and computer data, "Harvard Journal of Law & Technology" 1994, no. 8(1). ; Zajadło J., Teoretyczne i filozoficzno-prawne pojęcie prawdy, (in:) K. Kremens, J. Skorupka (eds.), Pojęcie, miejsce i znaczenie prawdy w procesie karnym, Wrocław 2013. ; 26 ; 6 ; 55 ; 69

The study consisted of identifying the existing problems in the implementation of international standards of digitization of criminal investigation at the legislative level. The research was carried out in stages as a summary, based on the logic of presentation of the material, to achieve and meet the objectives set out in the article. The method of direct observation, the method of comparison and analysis of the content of the documents, the method of systemic and pragmatic approach were used. The key results of the study were the analysis of the experience of implementing digital standards in forensic activities in the United States, Canada, Great Britain, Denmark, England, Austria, Estonia, and Ukraine. It is concluded that the problems that exist in the implementation of these standards, were identified from the criteria of evaluation of the efficiency and capacity of digital data processing by the agencies involved in the criminal investigation. In addition, the problems and difficulties faced by the authorities in implementing existing international digitization standards, indicate the need for comprehensive measures to organize criminal investigations. To overcome them, appropriate measures must be taken in the field of legislative changes.

Our criminal law has been developing in the direction of democratization and respect of the minimum legal standards as a condition for an objective assessment of criminal offenses and the protection of human rights and the law does, more or less, like all social phenomena resist the rapid and radical change. The investigation, as part of criminal proceedings is undoubtedly the most important and also the most delicate part of the proceedings. The issue of different organization of the concept of the investigation raises many doubts, misunderstandings and difficulties. The last reform in our country did not bring significant changes for the organization of the preparatory stage of criminal proceedings, and this issue is not sufficiently addressed nor in the literature. In fact, there are different models of investigation. The question is whether the better results could be gained in some of the other models for organizing the investigation which currently exist in the world. The author addresses the following issues: analysis of the models of preparatory stages of criminal proceedings - a historical review, the center of the proceedings, the abolition of judicial investigation, the historical development of the model of investigation in Serbia.

The article deals with the necessity of introduction of electronic criminal proceedings in Ukraine. It is noted that today Ukrainian criminal procedural legislation has introduced mixed or partially electronic criminal process, that is, paper proceedings with elements of electronic fixation. In the process of formation of electronic criminal proceedings, which has recently started in Ukraine, it is important to properly use the benefits of electronic document management. Another advantage of the use of electronic criminal proceedings, to which the EED is integrated, is the instant exchange of documents between law enforcement and judicial authorities. The time of drafting the electronic document should reflect the time of the decision in criminal proceedings or the completion of the investigative (investigative) action. The legislation stipulates that the electronic document must contain temporal differences in the conduct of investigative (investigative) action or making procedural decision with the moment of their documentary fixation. In view of the criminal proceedings, any procedural document in electronic form can be considered as documented data (information), which is being signed, and the investigator (detective, prosecutor, investigating judge) and other participants in the criminal proceedings - the signatories, ie persons who sign this document using a personal digital signature. The electronic digital signature of the investigator (prosecutor, investigating judge) and the other participant in the criminal proceedings can be verified with a public key, which will allow the author and / or signatory of the procedural and / or other document to be identified. It is stated that when in accordance with the requirements of the CPC of Ukraine it is necessary to certify with the seal the authenticity of the signature on the documents and the correspondence of copies of the documents to the originals, as well as to ensure the integrity of electronic data and to identify the institution as a signer (author) ...

The article explores the problem of the relationship between morality and law in general and in criminal proceedings in particular. It is proposed to consider morality as one of principles of law, and moral consciousness – legal awareness, and on this basis it is concluded that law and legal consciousness are connected not only purely legally, but also in a moral way. That is, they have a common moral foundation, moral nature. The approach is justified, according to which the domestic model of criminal proceedings should be formed primarily taking into account the moral needs of society and the individual. The moral aspect is defined as a system-forming category for both criminal procedure law and the law enforcement authority, which in turn should serve to improve the guarantees of a fair investigation and resolution of criminal cases, and to achieve the necessary balance of public and private interests in the criminal process.

The research question central to the thesis is stated as follows: what are the implications of new technological phenomena in South African law to the existing legal frameworks in relation to (i) investigatory powers of law enforcement and security and intelligence agencies to obtain electronic evidence, and (ii) its subsequent admissibility in criminal proceedings? Written with an emphasis on South African law, but also taking into account aspects of foreign and international law, the thesis seeks to investigate how our existing legal frameworks which regulate the use of and access to electronic evidence in criminal proceedings, including its admissibility, integrate and adapt to challenges raised by new and rapidly changing technological developments. The thesis provides a critical analysis of the existing legal framework regulating certain key investigative powers of law enforcement and security and intelligence agencies in the current modern environment of the information age in which they operate. Key among them is the Regulation of Interception of Communications and Provision of Communication-Related Information Act 70 of 2002. New technology has not only increased opportunities for criminal activity, it has also created opportunities for law enforcement and security and intelligence agencies to have access to more sophisticated and new capabilities. The range of intrusive capabilities now available to law enforcement and security and intelligence agencies triggers a range of issues and challenges for individual rights, including how those capabilities are used in investigation activities, the scale of their use, the extent to which such capabilities intrude on privacy rights, legislative authority for their use and safeguards that constrain and regulate such new technological capabilities. The challenges of regulating investigative powers in an era of new and fastpaced technological developments is explored in relation to (i) interception of communications (ii) acquisition and retention of communications data, and (iii) access to encrypted information. The introduction of electronic evidence in criminal legal proceedings raises unique challenges in the South African law on evidence. The most interesting perhaps is the extent to which the nature of the evidence presented, in this instance electronic evidence, impacts on admissibility in criminal proceedings. Potential anomalies arise as the relevant legislation, the Electronic Communications and Transactions Act 25 of 2002, is based on an electronic commerce model law concerned with commercial activities. In this regard, two separate issues are the focus of research interest. The thesis offers a rethinking of (a) admissibility of electronic evidence and (b) its weight. The meaning and application of certain statutory provisions, insofar as it applies to electronic evidence as hearsay or real evidence, or both, are key and controversial issues. Another relates to the business records exceptions, which directly translated for electronic records appears to have created a problematic presumption. On matters of evidential weight, there is no 'one-size-fits-all' approach that will work. While a robust consideration of authentication is required in the court's assessment of evidential weight of electronic evidence, it should not be subject to inflexible tests that make it difficult for authentic electronic evidence to be admitted into evidence. A central premise of the thesis is that evolving technological phenomena can and do present challenges to existing legal concepts on evidence and the investigatory powers of law enforcement and the security and intelligence agencies to obtain electronic evidence and for its admissibility in criminal proceedings. This is done in the context of understanding whether South African law has developed appropriately in response to advancements in technology. In the final analysis, the thesis considers appropriate and meaningful reform towards a modern and transparent legal framework in South African law.

The purpose of this article is to highlight the procedural status of the victim as a party to criminal proceedings in accordance with the criminal procedure legislation of the Republic Kazakhstan.

The article considers groups of special subjects of criminal proceedings established by the Code of Criminal Procedure of the Russian Federation. The authors, having examined in detail the signs that allow them to be attributed to persons having a special procedural mechanism for criminal prosecution, come to the conclusion that this mechanism, which provides as an integral part and at the same time a way to ensure the inviolability of these persons, complicated in comparison with the usual procedure for bringing to criminal responsibility, is generally justified in relation to the categories of persons considered

Introduction: the article is aimed at the analysis of reputable and qualified public members involvement in the sphere of criminal proceedings and in the resolution of criminal conflicts through mediation under control of the court in foreign countries, especially those with the Anglo-Saxon law system. In the United States and other common law countries, restorative justice has demonstrated some good results. Restorative justice considers an offence not only as violation of the law, but primarily the victim's rights violation. It also sees it as a wrongdoing, stating that the offence was committed not so much against public order and the State, but as trespass to the person. Restorative justice is aimed not only at punishing the offender and compensating for damages caused to the victim, but also, to a certain extent, at the offender's correction. It is generally recognized that incarceration does not correct the accused, and it can aggravate the vices of the individual in many cases. Restorative justice is able to avoid such issues. Not accidentally, the application of restorative justice programs, including these in the criminal process, is recommended by a number of international legal norms, especially in resolution of criminal cases against minors. In our country, the attitude to juvenile justice is ambiguous. However, this circumstance does not give the grounds to ignore the practice of the USA and other countries and gradually implement the elements of restorative justice that are acceptable to our criminal procedure. Purpose: to analyze the formation of the restorative justice paradigm, as well as the current practice of restorative justice programs in the countries of the Anglo-Saxon legal system, to identify some positive practices and substantiate the proposals for the consolidation of restorative justice programs in criminal procedure of the Russian Federation. Methods: there were used the dialectical, historical, comparative legal, system-structural, and logical-legal methods. Results: It is concluded that there is necessity for legislative consolidation of the possibility of the restorative justice programs use in criminal procedure of the Russian Federation. It is proposed to introduce relevant amendments to the Criminal Procedure Code of the Russian Federation.