Процесуальна природа доказів, що мають електронну форму в кримінальному процесі України: документ та речовий доказ

English

The procedural nature of digital evidence in the Ukrainian criminal procedure: documents and material evidence

Abstract. Introduction. The article provides a comprehensive study of the procedural nature of digital evidence as a source of evidence in criminal proceedings of Ukraine. In consideration of the provisions outlined in the current Criminal Procedure Code of Ukraine and the technical nature of digital information, it is posited that digital evidence possesses a hybrid structure. The combination of characteristics exhibited by these kind of evidences s is such that they can be considered to belong to both the domain of documents and that of physical evidence. This is dependent upon which of the two constituent components – content (information) or material (physical medium or device) – is the subject of procedural regulation. Purpose. The purpose of the study is to conduct a practical analysis of the procedural status of evidence in electronic form, taking into account the requirements of the current Criminal Procedure Code of Ukraine, in order to clarify the limits of their classification as documents or physical evidence as procedural sources of evidence. Materials and methods. The study employs the provisions of the CPC of Ukraine, scientific works of leading Ukrainian lawyers, as well as generalised results of law enforcement practice concerning the circulation of evidence in electronic form. The methodological basis of the study was formed by formallogical, systemic-structural, comparative-legal methods and the method of interpretation of legal norms. The application enabled the analysis of the regulatory framework, the identification of discrepancies in the legal regime of documents and material evidence, and the proposal of a scientifically sound approach to determining the procedural nature of evidence in the category under study. Results. The author conducts an analysis of the provisions of Articles 84, 99, 100, 170, 234, 236, 290 and 358 of the CPC of Ukraine in the context of their application to objects containing digital information that can be used as evidence. It has been established that digital information, in the form of computer data, which is relevant for establishing facts in criminal proceedings, corresponds to the definition of a document as a procedural source of evidence. Conversely, information carriers or computer systems on which such information is stored may, in certain cases, be considered as physical evidence, primarily for the purposes of implementing measures to ensure criminal proceedings, in particular the seizure of property. In view of the aforementioned points, the article proposes a differentiated approach to the procedural differentiation of components of digital evidence: 1) Digital information (i.e. computer data) is considered to belong to the category of documents, as outlined in paragraph 1 of part 2 of Article 99 of the CPC of Ukraine. 2) The term 'information carrier' is understood to encompass both the document and the material evidence, depending on the technical dependence of the digital data on the physical carrier and the necessity of its seizure. 3) The physical shell of the device is regarded exclusively as property to which property seizure may be applied. The mechanisms for recording, examining, copying and transferring of the digital evidence have been thoroughly examined. It has been demonstrated that the legal framework governing the utilisation of evidence in the aforementioned format must encompass both the distinct characteristics inherent in the storage of digital information and the imperative to safeguard the prerogatives of the proprietor of the technological devices. Further research in this area. The approach delineated in the article can be used as a practical guideline for pre-trial investigation authorities, prosecutors and judges in the process of working with digital evidence until the relevant amendments are made to the CPC of Ukraine.

Keywords: evidence in electronic form; criminal proceedings; documents; physical evidence; computer data; data storage devices; attachment of property; inspection; recording; electronic evidence; digital evidence