Теория и практика судебной экспертизы в современных условиях. Материалы VII Международной научно-практической конференции

704 Pages·2019·2.542 MB·Russian

by  Редколлегия: Россинская Е.Р.,

Министерство науки и высшего образования Российской Федерации
Федеральное государственное бюджетное образовательное учреждение
высшего образования
«Московский государственный юридический университет
имени О. Е. Кутафина (МГЮА)»
ТЕОРИЯ И ПРАКТИКА
СУДЕБНОЙ ЭКСПЕРТИЗЫ
В СОВРЕМЕННЫХ
УСЛОВИЯХ
Материалы VII Международной
научно-практической конференции
г. Москва, 17–18 января 2019 г.
Москва
2019
УДК 340.6
ББК 67.5
Т33
Редколлегия сборника:
Россинская Е. Р., профессор; Слепнёва Л. И., доцент; Неретина Н. С., кандидат
юридических наук; Лебедева А. К., кандидат юридических наук.
Т33 Теория и практика судебной экспертизы в современных условиях :
материалы VII Международной научно-практической конференции. —
Москва : РГ-Пресс, 2019. — 704 с.
ISBN 978-5-9988-0786-2
17–18 января 2019 г. в Московском государственном юридическом университе-
те имени О. Е. Кутафина» (МГЮА) состоялась VII Международная научно-прак-
тическая конференция «Теория и практика судебной экспертизы в современных
условиях». Инициатором и организатором конференции выступил Институт су-
дебных экспертиз при содействии кафедры судебных экспертиз Московского го-
сударственного юридического университета имени О. Е. Кутафина (МГЮА) и Ав-
тономной некоммерческой организации «Содружество экспертов МГЮА имени
О. Е. Кутафина».
В сборник вошли представленные участниками конференции материалы, в ко-
торых рассматриваются проблемы теории судебной экспертологии, правового, ор-
ганизационного и методического обеспечения судебно-экспертной деятельности,
подготовки и переподготовки экспертных кадров.
Тезисы выступлений и статьи печатаются в авторской редакции в алфавитном
порядке по фамилиям авторов. Мнение автора не всегда совпадает с точкой зрения
редакции.
Для научных работников, студентов, аспирантов и преподавателей вузов, прак-
тикующих юристов, а также широкого круга читателей, проявляющих интерес к
судебным экспертизам.
УДК 340.6
ББК 67.5
Сборник подготовлен с использованием СПС «КонсультантПлюс».
Научное издание
ТЕОРИЯ И ПРАКТИКА СУДЕБНОЙ ЭКСПЕРТИЗЫ
В СОВРЕМЕННЫХ УСЛОВИЯХ
Материалы VII Международной
научно-практической конференции
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Trisic Ljiljana
Theory and practice of forensic examination
in modern conditions
With the development of forensic science, particularly at the end of the
last century when DNA analysis and digital forensic1 came into practice,
forensic examination2, as a process activity, has become a vital part of court
proceedings. Mainly because of fi nancial reasons and saving of time, some
old forensic disciplines (blood group and fi bre examination, refractive in-
dex, etc.) have succumbed to the new ones. In order for the results obtained
through application of the new, sophisticated technics and technologies to
be accepted as evidence in criminal proceedings, it is necessary for them to
be based on reliable scientifi c fi ndings, whereas all the tools and procedures
used should be subjected to an independent testing.
Application of the two most important and most common international
standards of ISO/IEC17025, with ISO/IEC17020 just recently more pres-
ent in practice, provide the possibility for a better cooperation in criminal
cases through an exchange of valid forensic data on an international level as
well. Therefore, the accreditation and standardization process3 is essential
for the work of any laboratory. Sometimes this process and its results are
1 Is usually defi ned as “the use of scientifi cally derived and confi rmed methods for the purpose
of preservation, gathering, validation, identifi cation, analysing, interpretation, documentation, and
presentation of digital evidence obtained from digital sources for the sake of allowing or improving
a crime reconstruction” (DFRWS technical report: A Road Map for Digital Forensic Research,
New York 2001, http://www.dfrws. org/2001/dfrws-rm-fi nal.pdf, 15
2 Expertise is demanded in cases when a fi nding or an opinion of a person in possession of
the necessary expert knowledge is needed for determining or evaluating some important fact. If
scientifi c, technical or other expert knowledge can help a court to evaluate the evidence or clarify
disputable facts, an expert witness, as a special type of witness, can testify by giving his fi ndings
concerning the facts and opinion containing the evaluation of these facts [Article 95 from the
Law on Criminal Proceeding of BH (hereinafter: LCP), article 160 from the Republic of Srpska
LCP, article 109 from the Federation of BH LCP, and article 95 from the Brčko District LCP].
3 “Accreditation confi rms the competency of a forensic laboratory for performing foren-
sic examinations, whereas certifi cation is a confi rmation of conformity of the managing and
examining systems, and forensic laboratory expertise with the international standard of ISO
17025’’ (Ivanović, R. A., Ivanović B. A., Forenzička akreditacij a — pouzdan način dokazivanja/
Forensic accreditation — a sure way of proving, Zbornik radova, VII naučna konferencij a sa
međunarodnim učešćem, Kriminalistički i krivično procesni aspekt dokaza i dokazivanja,
Internacionalna asocij acij a kriminalista, Sarajevo, 2013. Str.353.
4 Trisic Ljiljana
relativized, and even wrongly presented in practice, which can result in
a provision of disinformation to parties of a court proceeding and potential
disavowal when it comes to assuming an attitude toward the other party.
The reason is that mainly two-three methods are accredited, and once this
procedure is over the laboratory is declared as accredited even though the
other methods still in use have not been accredited. The situation in the
fi eld, the expert analyses of the local and international experts engaged
through the pre-accession IPA projects (experts from Germany, Slovenia,
and Croatia), the USAID project for supporting the justice and safety
system, and the similar projects as well, all indicate a situation still not
suitable for taking a step this big toward validation of forensic fi ndings in
Bosnia and Herzegovina (hereinafter: BH).
One of the results of the BH justice system reform ended in 2004 was
the abolition of investigative judge position and switching to prosecutorial
investigation. “In order for a prosecutor of internal aff airs organ to be able
to decide on the type of expertise needed for a specifi c case, they need to
know what expertise have been made possible thanks to achievements of
the modern science and technics, their ranges, possibilities, and limitations,
at least the basic ones. If a prosecutor doesn’t know what to choose and
in which way to ask questions to an expert witness, which of the questions
can be answered, and the ones that can’t, such expertise can take a wrong
turn, which will result in the loss of time, money, material sent for anal-
ysis, and, at the end, the loss of evidential information”1. It depends on
the prosecutor’s order whether the expertise will be performed by a single
expert witness or by a commission, and whether a unique or complexed
analysis will be applied2. It is only the prosecutor who can decide on, for
instance, which situational expertise3 will be conducted.
On the basis of actual needs, it is therefore necessary to organize an
educational program for judges, prosecutors, and expert witnesses at least
once a year at the centres for the education of judges and prosecutors. Being
well versed in criminalistics is one of the most important preconditions
for a professional performance of tasks for all the three mentioned posi-
tions. As this subject is studied at law faculties only, but even there not to
a suffi cient extent, it is necessary to plan this type of additional education
methodically.
In theory defi ned as indispensable, the cooperation between a pros-
ecutor and an expert witness usually has much room for improvement
1 Simeunović B., Pena U. Kriminalistika, Pravni fakultet u Istočnom Sarajevu, I. Sarajevo,
2010.god. Str. 364.
2 Vidi Belkin — Zuikov: Criminalistics, volume 2, Moscow, 1970, page197
3 Vodinelić V. Nova vrsta veštačenja — situaciona ekspertiza, Priručnik, broj 5/1986.
Str. 427–447.
Theory and practice of forensic examination in modern conditions 5
in practice, and should be a lot more comprehensive and existing. The
law on court experts allows a prosecutor to get involved in the expert
witness’s work — from the selection of expert witnesses, supervision of
their work, evaluation of the achieved, but this right and obligation are
rarely applied in practice.
When it comes to education and professional development of expert
witnesses, the rule of “no rule” existing is widely spread in practice.
A part of blame is on quite general, arbitrary, and already obsolete system
of work of the Civil Service Agency of BH conducted when employing
an expert witness, but also for the professional development programs
carried out by this agency. Therefore, all expert witnesses, depending
on the speciality, need a planned, organized, and uniform professional
trainings to be carried out at the centres for the education of judges and
prosecutors. Further upgrading and professional development must be an
obligation of all expert witnesses, fi nanced with their own means, regard-
less of whether a civil servant or non-government forensic organization
employee is at stake.
For the needs of professional development of expert witnesses, just
as for all the civil servants in BH, the European pre-accession funds are
used as well. Unfortunately, this important opportunity for gaining new
or building the existing specialized knowledge by paying a visit to the re-
nown European forensic centres, and which will last until the accession of
BH candidate status for the EU, is often misused for “tourist” purposes.
There is far less interest in the other version of knowledge transfer, so far
proven as way useful, which is provided by experts from the EU laboratories
coming to BH and providing training for the expert witnesses in our own
laboratories, using our own equipment and cases from the BH case law.
Expert witness post requires a professional in a specifi c fi led dedicated
to work, very self-initiative, well versed with criminalistics. The BH laws on
expert witnesses stipulate, among the rest, that a permanent expert witness
is to have a necessary educational degree, experience and professional
knowledge, proven work ability based on the results achieved so far, the
ability to professionally and clearly justify the fi ndings at stake, and the
reputation of a diligent, objective, and expeditious expert with a personal
integrity and high moral qualities demonstrated not just at work1. Also,
the international standards emphasize a crucial importance of having the
expert witness’s independence, integrity and impartiality guaranteed by
the legal norms on the national level2.
1 Analysis of the witness expert engaging system for the cases of corruption, organized and
economic crime, USAID justice project in BH, December 2017; www.usaidjp.ba, page 55.
2 See the CEPEJ guidelines on the role of expert witnesses in court cases in the countries
of the European Council.
6 Trisic Ljiljana
An expert witness cannot be engaged by various forensic laboratories
because in that case there is not much left of professionalism, but instead it
all comes to doing a bit of everything. On the other hand, a prequalifi cation
of experts from one laboratory to another is a very expensive process, and
is to be resorted to only in case of an outmost need, e.g. a lab being shut
down, and a new one for a related type of expertise is being established.
Also, the afore mentioned USAID analysis1 has identifi ed the downsides
in this fi eld and suggested the following: “It is recommended to specify
more precisely the needed special fi elds / subspecialties of which an expert
witness is to meet the knowledge and qualifi cation criteria.’’
The current safety-political situation in the world has also been burdened
with the economic-political migrations, as well as with an uncontrolled infl ux
of refugees fl eeing from the areas of Middle East engulfed in war. A certain
imminent threat of terroristic activity potentially carried out by this category of
infi ltrated militants, well trained for guerrilla warfare, ideologically fanaticized,
and groups of Islamic State well-paid through organized criminal activities
has become a signifi cant risk in the relations between the world’s greatest
powers, but also an endurance test for a big union of states, such as the Eu-
ropean Union. A domino eff ect that could result from a forceful separation of
Kosovo from Serbia has already been indicated by the attempted separation
of Catalonia from Spain and the preceding failed referendum in Ireland. This
has resulted in a visible strengthening of the extreme right in Europe. If the
new world economic crisis indications are to be added to this, it is logical
to expect an increased number of criminal acts of all types, especially from
the fi eld of organized crime and corruption, which are often the fi nancing
sources of terroristic activities.
Since the organized crime knows no border, state, block or even conti-
nental, a question is raised as to whether the existing justice systems are up for
confronting it and taking quality criminal-process proving actions, within the
frames of the international legal norms that would result in a rightful verdict.
Without a good cooperation in the form of a well-organized and professionally
coordinated forensic activities in the “common forensic sphere”, in other
words without the practicability and professional exchange of data, signifi cant
investments in scientifi c-forensic investigations and sophisticated equipment,
the prosecutor-expert witness cooperation, and staff trained methodically in
forensic laboratories, all the attempts in this fi led will be a lot more diffi cult.
A precondition for all of these activities is reaching quality legal solutions
that would cover all the aspects important for having an eff ective, profes-
sional expertise, based on the international standards, and their consistent
application in practice.
1 Analysis of the witness expert engaging system for the cases of corruption, organized and
economic crime, USAID justice project in BH, December 2017; www.usaidjp.ba, page 57.
Biometric handwritten signature: features, implications and forensic issues 7
Dr. Nicolò Di Toma, Dr. Mirka Mantoan, Dr. Milena Pugnaloni
Biometric handwritten signature: features, implications
and forensic issues
The use of the biometric handwritten signature is increasingly widespread
in the world. In Italy this kind of signature is now commonly used for signing
at banks and offi ces. The technology behind this kind of signature allows the
acquisition of the biometric data of an individual’s writing. In fact, a tablet
and a special software allow to record the movement of the signature and,
if required by the legislation, this signature can be considered as equivalent
with the one on paper. For example, in Italy it is possible to sign in this way
electronic fi les legally binding, if biometric data are entered in an acquisition
process that meets specifi c requirements. The introduction of this kind of
signature has been a success since the perception remains the same as if
it were signed on paper. However, the recording of biometric data of the
writer sets a number of issues that make the biometric handwritten signature
very diff erent from the one on paper, despite the fact that the signing act is
done with a pen / nib on paper / electronic device.
Particularly the following points have to be considered from a forensic
point of view: a) In many countries the biometric signature is a process,
not a product; b) the biometric signature acquires biometric data of an
individual that need a specifi c treatment in matter of security; c) The
skills which are required from the forensic expert to manage this kind of
signatures are changing.
The forensic implications of the biometric signature are very relevant
and for this reason we have created a research lab, which is the only one in
Italy, to study these issues (www.grafobiometristi.it). We started forming
forensic experts whose skills allow them to examine biometric signatures.
With this report we want birefl y point out some of the main points
related to the biometric signature from a forensic and legal point of view.
The biometric signature is a behavioral biometrics
We know that the security systems use diff erent ways to identify peo-
ple. A way is to check the individual physical features (how a person is:
for example his/her fi ngerprints or the facial features): this is the physical
biometrics. Another way is to check some behavioral features of the individ-
ual that vary but remain similar to each other: the variation within a range
allows to make them identifying of an individual: in this case we talk about
behavioral biometrics.
The biometric signature is a kind of behavioral biometrics. This means
a biometrics typology which don’t monitor how an individual is, but how
he/she is doing something. This diff erentiation shows very important ad-
vantages which make behavioral biometrics very secure: for example, a bi-
ometric signature requires that the signer is alive and sentient. At the same
time, behavioral biometrics are more challenging to expertise since they
8 Dr. Nicolò Di Toma, Dr. Mirka Mantoan, Dr. Milena Pugnaloni
are varying and the forensic expert must therefore evaluate if the variation
is within the indvidual’s variation range or not.
The technology of a biometric signature
The tablet is connected to a PC with a software which can record the
movements of the pen (nib) on the surface. This communication between
the tablet and the nib takes place thanks to a magnetic fi eld. The tablet can
record at any moment the position of the nib along the vertical/horizontal
axis (X, Y) and the pen pressure on the tablet. In the absence of contact,
the tablet still records the position of the tip of the nib also on air: generally
until 1–2cm (in-air strokes). The position of the pen will be monitored
at precise time frames (typically every 5ms). In this way, once ended the
signature the whole movement of the author is represented by the time
frames of the points identifi ed by 3 coordinates (vertical axis, horizontal
axis, pressure). These numerical data allow us therefore to reconstruct the
signature not only in its outward form but in its dynamic movement too. In
this way we can obtain objective measurements on the speed, acceleration
and pressure of each signature.
Thanks to this technology we can acquire the behavioral biometric data
of an individual’s handwriting. Regarding to the forensic analysis, this fact
represents a huge new development compared to the handwriting analysis
on paper because for the fi rst time it’s possible to measure in an ojective
way the velocity and the pressure.
The biometric signature isn’t a “scribble”
It’s rather understandable that if technology allows an individual’s sig-
nature to be recorded with such precision, the biometric data contains
a large amount of information. As we have seen, there are features which
are detectable only in biometric handwriting and not on paper handwriting
(ie velocity, pressure).
A large number of individualizing elements are therefore provided to
automatic recognition systems and forensic experts who are able to analyze
these data.
Despite this precision of technology, the users have generally the percep-
tion that the signature on a tablet is less representative of their individuality.
Sometimes people consider the signature on the tablet a kind of scribble
with almost no value! This is a paradox due to the undeniable fact that
technology currently presents diff erences in perception (diff erent friction
on tablet, diff erent pressure feedback). We have however to pay attention
to the fact that in reality the recorded data are quantitatively superior com-
pared to those on paper. For this reason the biometric signature is a highly
identifying biometrics… and not a scribble.
Biometric handwritten signature: features, implications and forensic issues 9
Signature’s render
A fundamental aspect in the practice of the biometric signature anal-
ysis concerns the awarness that the biometric data is not the picture of the
signature, but consists of the spatial coordinates recorded by the tablet and
the software. The softwares used to analyze the writing biometric data, for
convenience also represent these data as picture through a render of the
numerical data. For example they highlight the greater pressure of some
points by enlarging the trait thickness. This is a critical point in the forensic
analysis of the biometric signatures, since the experts has to evaluate the
numeric data acquired by the tablet and not the graphic representation of
the signatures. The signature IS NOT the picture shown by the software,
since every picture shown by the software is only the render of the numeric
data describing the signature. The forensic experts shall be able to to eval-
uate these data and don’t have to be fooled by the pictures shown by the
software. In order to do this, new and diff erent skills are needed than those
of the experts usually working on paper.
Training and skills of the forensic experts
Thanks to its simple usability, the biometric signature has experienced
a wide diff usion in Italy and in other countries. In fact, the end user signs
as if he were signing on paper and for this reason this signing modus is
easily accepted by the population. As we have seen, in reality the biom-
etric signature is a real acquisition of biometric data and not a simple
graphic representation of a signature morphology. These data can’t be
visually examined as it was the case for the paper but have to be evaluated
statistically. For this reason, specialists must have a specifi c training in
mathematics, statistics and research methodology. The forensic experts
must be familiar with the technology too beause the signatures concern
electronic documents.
Moreover, in some countries, ie Italy, biometric data of handwriting go
into a wider process of security acquisition (see following paragraph). This
is to ensure that the biometric data are saved in a PDF document through
a cryptograhpic system and not subsequently modifi ed. In this case the
specialist has to be able to evaluate these technical aspects of the process too.
Regulations (Italy and world)
The concept behind the biometric signature is the capability to record
personal data of the writing movement thanks to both the tablet and the
software. However in Italy, the country where we are working, the simple bi-
ometric data (signature movement) is not enough to defi ne a valid signature.
In Italy, the “Firma Grafometrica” signature (this is how this technology
was named in Italy) is a special kind of signature that includes the signing
act within a wider process. This is a secure process that allows to carry out
10 Ph. D. Rafal Ciesla, Sabrina Bellucco, Milena Pugnaloni
some actions, ie: identify the author, obtain from the author the approval
to process biometric data and encrypt biometric data within the document.
This normative approach derives from the fact that such an identifying
data as the biometric one must be treated in complete security, and then
included in a wider process. These are fundamental aspects in Italy and in
Europe, also in light of recent regulations (Regulation (EU) No 910/2014
of the European Parliament and of the Council of 23 July 2014 on electronic
identifi cation and trust services for electronic transactions in the internal market
and repealing Directive 1999/93/EC, GDPR).
The specifi c situations in other countries have to been evaluated from
time to time, as we aren’t automatically faced with a legally valid biometric
handwritten signature for every diff erent country simply in presence of
a tablet and of the acquisition of the writing movement. Experiences with
other countries are showing us that there are some diff erences between
the diff erent states, even within Europe. These diff erences have to been
managed considering the legal validity of the signatures within the Com-
munity. For those reasons our research group is extensively studying the
legal implications of both EIDAS and GDPR in the reality of biometric
handwritten signatures all over the world.
Ph. D. Rafal Ciesla, Sabrina Bellucco, Milena Pugnaloni
The biometric signature in Europe the new profession
of forensic… grafobiometristslaws, protocols, and methodology
Abstract
The original digital document is the product of a technological development
that allows the dematerialization of paper documents with enormous economic
savings in the management of archives. The biometric signature allowed to
complete the production cycle of an electronic document. In the transition
from paper to digital and before the introduction of an electronic subscription
methodology, documents that were born as digital fi les had to be printed, signed
on paper, scanned and archived.
In this way, a digitalized document was obtained but not a digital original.
The passage on paper also involved an enormous waste of resources and money.
The biometric signature allows optimal management and avoids this waste
because the electronic document is wholly digitally formed in all its components.
Various underwriting systems can be adopted, the European law provides
for three levels of legal validity (electronic signature ES, advanced electronic
signature AES and qualifi ed signature QES) and various signature systems
(pin, OTP, biometric signature, etc.), each adaptable to specifi c needs. In
this report, we deal with the theme of the biometric signature, the manuscript
signature made with a tablet. We deal with the legal question of the subject: what
is the validity of this signature system according to European law, the risks of