Electronic evidence in criminal proceedings: problematic issues of theory and practice

Abstract

The article summarises the scientific developments regarding the concept and essence of electronic evidence and provides the author’s own definition to the concept of “electronic (digital) evidence” in criminal proceedings; examines the regulatory framework for the use of electronic (digital) evidence in criminal proceedings; analyses the investigative and judicial practice and the practice of the Supreme Court regarding the admissibility of such evidence in criminal proceedings.
 It has been admitted that today the problem of regulating electronic (digital) evidence is relevant. The analysis of the Criminal Procedure Code of Ukraine makes it possible to understand that electronic (digital) evidence has almost no legal regulation, which negatively affects the quality and effectiveness of criminal proceedings. As a result, a number of legislative contradictions arise. Unlike other procedural laws (commercial, civil and administrative), criminal procedural legislation does not contain any provisions on electronic (digital) evidence. At the same time, there are positive trends at the legislative level to recognise the need to regulate electronic (digital) evidence in criminal proceedings.
 It has been determined that today there is no unified approach among scholars to understanding the concept, features and place of electronic evidence in the system of sources of evidence in criminal proceedings. It is proposed to use the term “electronic (digital) evidence” at the legislative level. This is substantiated by the fact that “electronic” indicates the type of device with which the evidence was created and stored, and “digital” refers to the type of recording the formation on the relevant device. 
 The analysis of investigative and judicial practice has highlighted the ambiguity in the understanding of law enforcement officers regarding the collection of electronic evidence. This issue was the subject for consideration by the judges of the Criminal Court of Cassation of the Supreme Court (in particular, the procedure for assessing electronic evidence and its admissibility was explained in the decision of the Joint Chamber of the Criminal Court of Cassation of the Supreme Court dated 29 March 2021 in case No. 554/5090/16-к).
 Taking into account international experience in collecting electronic (digital) evidence allows the use of the Berkeley Protocol in criminal proceedings in Ukraine, as it is actively used by the international community and is relevant in the context of russia’s armed aggression against Ukraine.