Procedural and organizational aspects of electronic evidence collection during international cooperation

Abstract

The article is devoted to issues of international cooperation during criminal proceedings and features of electronic evidence collection, which are managed by a foreign service provider. The Criminal Procedure Code of Ukraine does not contain a definition of electronic evidence, but criminal justice is increasingly faced with the need to collect, evaluate and use such evidence for sentencing. The lack of normative certainty does not contribute to the unity of judicial practice, the issue of evaluating electronic evidence obtained within the framework of international legal assistance is especially acute. In such situations, it is necessary to assess the legality of the law enforcement agency's activities, compliance with conventional guarantees of human rights compliance, fulfillment of obligations to use electronic evidence exclusively in the proceedings in which it was obtained, to check the fact of repeated appeals to the central body of international cooperation in another state with a request for permission to use such evidence in other proceedings, when such a need arose, etc.
 Courts consider prosecutor's requests for temporary access to electronic data or to conduct a search, sometimes making mistakes in specifying the jurisdiction where the evidence originated or where the consequences of the criminal activity occurred. Procedural requirements, which are provided for by international acts, determine the need to apply to the state in whose territory the entity that owns, accumulates and manages data is located. The content of the request submitted to the court must be substantively consistent with the type of electronic evidence and the method of obtaining it in another jurisdiction, which is not always taken into account (request for preservation of evidence/preservation of evidence).
 The collection of electronic evidence takes place through a complex procedure of interaction between law enforcement agencies, service providers, liaison officers, and attaché officers working in the embassies of different states. Therefore, in addition to procedural aspects, it is advisable to take into account the legislation of other states for the effective use of organizational rules (the most effective channels for obtaining evidence).
 The study of gaps in the current legislation and the recommendations of international experts contributes to the formation of a holistic theoretical vision of the normative consolidation of international mutual legal assistance for obtaining electronic evidence and the introduction of proposals for the consolidation of such a mechanism in the special law of Ukraine.