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Actual problems of providing evidence and bringing to justice in civil and criminal cases related to digital assets (cryptocurrency)

In the Republic of Kazakhstan, for the first time at the legislative level, the term "digital asset" was fixed in June 2020, and in February 2023, the Law "On Digital Assets in the Republic of Kazakhstan" was officially published. The legislative regulation has further increased the activity of society in this area, and activity, in turn, has led not only to new opportunities, but also to new types of fraud and offenses related to digital assets. Consequently, new challenges and tasks have appeared in the legal field related to providing evidence and bringing to justice in cases where digital assets become the subject of civil or criminal cases.

This article provides a detailed overview of some of the current problems faced by law enforcement agencies, lawyers, lawyers and courts in the investigation and consideration of cases related to digital assets, in particular – with cryptocurrency.

According to the Law "On Digital Assets in the Republic of Kazakhstan" dated February 6, 2023, a digital asset is a property created in electronic and digital form with the assignment of a digital code, including using cryptography and computer computing, registered and provided with immutability of information based on distributed data platform technology. Such property includes cryptocurrency. Cryptocurrency is a digital (virtual) currency that has no physical expression. In other words, cryptocurrency is a form of digital or virtual asset that uses Blockchain technology to ensure the reliability and security of transactions. Cryptocurrencies have their own characteristics:

Firstly, as a rule, the owners of cryptocurrencies are depersonalized (anonymous), you can set the number of the crypto wallet, but it is not always possible to establish its owner, since only some platforms and crypto exchanges contain identity authentication, transactions in most cases do not require disclosure of personal data of participants.

Secondly, the cryptocurrency operates on the basis of Blockchain technology (a decentralized and distributed data storage technology that allows network participants to record and confirm transactions in a reliable and transparent mode).

Thirdly, the cryptocurrency is completely decentralized, it is not managed by government agencies or the government.

Fourth, all transactions in the Blockchain are publicly available and can be verified by any user if there is a crypto wallet address or a transaction hash (a mathematical algorithm that accepts arbitrary data of any length and converts it into a fixed string of fixed length).

The transfer of cryptocurrencies is carried out through the Blockchain system, which confirms that one user has the right amount of funds on the crypto wallet to transfer to another by recording all transactions. The transfer takes place by debiting a crypto wallet from one account and replenishing it to another crypto wallet account specified during the transfer, and the transaction is recorded in the Blockchain.

The blockchain system is absolutely impersonal, all transactions are recorded using cryptography in a special block chain of each address of the crypto wallet from the moment of its creation, and therefore it is impossible to mechanically, physically, or otherwise make any changes to the transaction or delete anything, it is only possible to add new ones to the blocks.

To carry out transactions with cryptocurrency, it is necessary to create a crypto wallet. When creating a crypto wallet, an address is generated to it, consisting of a unique set of letters and numbers (similar to a bank account). The address of the crypto wallet is generated by the system automatically and immediately marked in the Blockchain, all transactions that occur with it are linked to this address, both for withdrawal and replenishment, which is also automatically marked in the Blockchain. It is impossible to change the address, as well as to change or delete anything in the Blockchain. You can create a new address, but it is impossible to change an existing one by adding any characters/letters to it, just as it is impossible to make changes/delete any transactions. Therefore, no technical failure or system error, even hacking, can affect the address of an already created crypto wallet, since the Blockchain is impersonal and fully protected.

Further, the wallet is replenished by purchasing cryptocurrencies. In order for the cryptocurrency to be transferred, it is necessary to create a transaction, that is, specify the recipient's crypto wallet address, the cryptocurrency and the transfer amount, after which it is necessary to confirm the transaction by signing with a private key or using a unique code sent to email, phone, etc. After confirmation, the cryptocurrency is immediately sent and credited to the recipient's account, it takes as long as usually a few minutes. Each transaction has its own unique code – the hash identifier of the transaction, with its help you can not only verify the authenticity of the transaction, but also get information about the transfer. Among these information, the value of the transfer, the amount of the transfer, the cryptocurrency (token) of the transfer, the time and date of the transfer, the addresses of the crypto wallets from whom and to whom the transfer was made, and transactions of a suspicious nature or with a bad reputation are always marked by the system with special signs, the hash of the transaction is public and is publicly available.

At the same time, despite the good security and transparency of cryptocurrency transactions, there are serious problems of providing evidence and bringing to justice in civil and criminal cases related to digital assets (cryptocurrency).

Based on the practice of criminal cases in this category, it follows that the fraud scheme is approximately the same, consider an example: a person finds a buyer of cryptocurrency for cash through social networks (usually Telegram), after which the transaction is carried out online in two tranches. The first tranche is a trial, in which about 1% of the total transaction value or a cryptocurrency in the amount of 10 to 100 tokens is transferred, in order to verify the authenticity of the recipient's address, after which the full amount is transferred. Further, this amount suddenly "disappears" from the recipient's crypto wallet and the sender, without receiving his money, turns to law enforcement agencies.

In addition, there are a large number of other schemes directly related to hacker attacks and the theft of cryptocurrencies directly from the owners' crypto wallets.

The difficulties of providing evidence and bringing to justice in civil and criminal cases related to digital assets (cryptocurrency) are as follows:

First of all, the cryptocurrency, as mentioned above, is anonymous. The sender retains only the address of the crypto wallet to which he transferred the funds, but it is usually very difficult, and sometimes impossible, to identify the identity of the owner by it. In this case, the identification of the owner is simplified by the presence of correspondence in which the owner himself provides the address of the crypto wallet, indicating it as his own. If a crypto wallet is created on an official exchange that uses identity authentication during registration, then at the request of law enforcement agencies during the investigation, the identity of the person who committed illegal actions or involved in the case can be established. It follows from this that when investigating crimes related to cryptocurrency, it is necessary to develop special methods for tracking and identifying the perpetrators, as well as to contact specialists in this field and directly cooperate with crypto exchanges.

In addition, cryptocurrency-related evidence is often digital in nature and can be altered or forged. It is important to ensure the integrity and authenticity of digital data so that they can be used as evidence in court. When investigating a case, one should not focus only on screenshots and testimony provided by the participants in the case, it is necessary to refer to the primary source of all transactions – the Blockchain, which is presented in the form of a digital file reflecting all transactions and their details. In order to find the source file, you need to click on the hash identifier of the transaction, or open the transaction link (or crypto wallet addresses) in the browser, where everything will be reflected in detail, no special access or authorization is needed for this, everything is publicly available. In this connection, it is necessary to develop methods for analyzing blockchain data and digital traces in order to establish a connection between the actions of individuals and their cryptocurrency transactions.

Further, it is important to note that the cryptocurrency is not limited by geographical boundaries and attackers are not always located on the territory of the Republic of Kazakhstan.

This creates difficulties in determining the jurisdiction and competent authorities for investigation and judicial proceedings. Crimes committed in one country using cryptocurrencies can actually be committed remotely from other countries, which requires international cooperation and coordination of legal procedures.

In addition to the above, cryptocurrency and Blockchain technologies are at a relatively early stage of development, and the legal norms for investigating crimes related to digital assets have not yet been fully developed and continue to be improved and supplemented over time. This makes it difficult to bring to justice and ensure a fair trial of cases related to cryptocurrency.

It is important to note that that, a significant increase in offenses in the field of digital assets is affected by low legal awareness of the population about how digital assets are regulated in the legislation of the Republic of Kazakhstan, and how to legally conduct transactions with them. In this regard, it is necessary to organize special events to increase legal literacy and knowledge about digital assets among the population.

The next difficulty is the withdrawal of digital assets. 

In cases of criminal and civil cases related to cryptocurrency, the issue remains the seizure of assets for damages or confiscation as part of a criminal investigation.

The lack of a physical form of cryptocurrency and its decentralized nature can create difficulties in implementing such measures. Also, it is worth noting that an unlimited number of persons who have been provided with a login and password can have access to the crypto wallet. In this case, when a cryptocurrency arrives on a crypto wallet, a third party can immediately withdraw it to other crypto wallets, which will significantly complicate the process of investigating and searching for the final recipient of the cryptocurrency.

When bringing to justice the perpetrators, the main difficulty lies in their identification. In the case where identification is possible, it becomes difficult to collect direct evidence, it is quite difficult to establish that it was the actions of a certain person that led to the commission of an offense, due to all the features of cryptocurrency and cryptocurrency transactions.

When investigating crimes, providing evidence, as well as in the administration of justice in civil and criminal cases related to digital assets, the following recommendations should be followed:

It is necessary to increase the level of knowledge and undergo special training in the investigation of crimes related to digital assets. It is worth considering that investigations of crimes related to cryptocurrency require an understanding of the technical aspects of Blockchain, smart contracts, cryptography and other technologies.

The blockchain contains a huge amount of transaction data. The analysis of such information for the investigation is presented in the form of a special source file containing everything necessary for the investigation. Cryptographic methods ensure the security of transactions and wallets, and awareness in this area will significantly simplify the investigation process, as well as provide a solid evidence base for all transactions conducted from a certain crypto wallet. In the administration of justice, it is also necessary to understand this area, since it is the judges who study the evidence and on their basis make appropriate judicial acts. Thus, none of the parties will be able to mislead the court, since the judge, having familiarized himself with the evidence, will be able to independently understand and establish the chain of events.

Also, law enforcement agencies, and in the case of resolving civil cases, courts (upon request, with assistance in obtaining evidence), it is necessary to send appropriate requests to crypto exchanges to quickly provide evidence for a full and comprehensive examination of the case, since an individual alone will not be able to obtain the confidential information necessary for the case. Owners of cryptocurrency wallets have private key information that is necessary for making transactions. Obtaining this information can be difficult without cooperation with the field of cryptocurrency exchanges or wallet providers. Without receiving relevant information from crypto exchanges, it can be difficult to establish the guilt of a certain person.

In addition, experts or specialists in the field of Blockchain technologies and digital assets should be involved, who will be able to provide a detailed conclusion on all transactions and answer all questions necessary for the investigation, both in writing and in person, with participation in the court session.

It is worth noting that digital assets, including cryptocurrencies, represent an important aspect of the modern economy and financial system. However, their growth also makes it necessary to adapt legal procedures to ensure effective investigation and trial of cases related to digital assets. The development of modern methods and tools to provide evidence and bring to justice in the field of cryptocurrency is becoming an important task for law enforcement agencies and the legal community.

The global nature of cryptocurrency crimes means that investigations may face difficulties related to determining jurisdiction and the need for international cooperation. In addition, the rapid development of cryptocurrencies and blockchain technology creates challenges for legal norms and procedures, requiring constant improvement and addition of legislation. Low legal awareness of the population and lack of knowledge about the regulation of digital assets affect the growth of offenses in this area.

The difficulties associated with the seizure of digital assets require special attention when considering criminal and civil cases. The decentralized nature of cryptocurrencies creates difficulties in carrying out confiscation and restoration of damage.

As a result, for effective investigation, evidence assurance and fair trial in the field of digital assets, it is important to maintain a high level of knowledge and competence in the field of blockchain technology, cooperate with various structures and specialists, and constantly adapt legal approaches to a rapidly changing environment.

The article was first published in the journal "Zanger" — Bulletin of Law of the Republic of Kazakhstan, No. 11 (268) 2023

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