SC Judges and Experts Discussed the Admissibility of Electronic Evidence Obtained from Open Sources

Judges of the Criminal Cassation Court within the Supreme Court took part in a round table on the admissibility of electronic evidence obtained from open sources in the framework of national criminal proceedings for gross violations of human rights as a result of Russian aggression against Ukraine.

In his opening speech, Stanislav Kravchenko, President of the Criminal Cassation Court within the Supreme Court, said that on a tragic day - February 24, 2022 - the life of Ukraine had changed. In the first days of the full-scale Russian invasion, the territories of, inter alia, Kherson, Zaporizhzhya, Donetsk, Luhansk, Kharkiv, Sumy, Chernihiv, Kyiv regions were seized.

According to Stanislav Kravchenko, at this difficult time, the criminal justice faced the question of organizing the work of courts in cases where court hearings could not be postponed (in particular, issues of detention, extension of detention periods). Responding to these challenges, the Supreme Court prepared for judges a generalized information letter “On Certain Issues of Conducting Criminal Proceedings under Martial Law”. Thus, the Supreme Court provided courts and pre-trial investigation bodies with methodical and informational assistance on the issues of criminal proceedings during the war.

In addition, a new category of crimes has come to the fore, the ones which previously either did not exist at all, or were in small numbers. First of all, these are criminal offences against peace, the security of mankind and the international legal order (planning, preparing, initiating and conducting an aggressive war; violation of the laws and customs of war).

"The second fairly large block of criminal offences that are being committed today - crimes against the foundations of the national security of Ukraine. This is high treason, collaborative activity, complicity with the aggressor state. And the third block - military criminal offences", - said the President of the Criminal Cassation Court within the Supreme Court.

He also reminded that liability, in particular, for criminal offences against property committed under martial law had been increased.

“Despite all the challenges of the present time and the difficulties that arise in the organization of the work of the courts, we are obliged to make every effort to conduct a quick and effective investigation of such categories of crimes, prompt and high-quality trial,” said Stanislav Kravchenko.

According to him, evidence and proving is the basis of any process, and the efficiency of criminal proceedings in court and the speed of achieving the goal of justice depend on the quality and completeness of the evidence base collected during the pre-trial investigation.

"Obtaining evidence from open sources is not a new issue for Ukrainian courts. For a long time, in some criminal proceedings, not only under the Criminal Procedure Code of Ukraine of 2012, but in some cases under the Criminal Procedure Code of 1960, there was electronic evidence. The investigation and the courts use this evidence in accordance with § 1 "Definition of evidence, adequacy and admissibility when recognizing information as evidence" Ch. 4 "Evidence and proving" of the Criminal Procedure Code of Ukraine, Art. 99 "Documents" of this Code. The use of electronic evidence has also revealed some problems," said Stanislav Kravchenko.

Among the current issues: the ability to apply monitoring and user search in social networks, the results of eliciting information from electronic information systems, the legal assessment of screenshots, the ratio of the original evidence and its copies.

Stanislav Kravchenko drew attention to the resolution of the Joint Chamber of the Criminal Cassation Court within the Supreme Court of March 29, 2021 in case No. 554/5090/16-к (proceedings No. 51-1878кмо20), which, in particular, concluded that the electronic document was admissible as evidence.

Oleksandra Yanovska, Judge of the Criminal Cassation Court within the Supreme Court, said that currently the issue of digital evidence was relevant. Thus, during the investigation of certain criminal offences: both those that were previously in the Criminal Code of Ukraine and novelties that appeared in this Code recently as a response to socially dangerous actions related to Russia's armed aggression against Ukraine - there is an issue of obtaining, storing and evaluating digital evidence, including data from open sources.

"When it comes to such criminal offences as, for example, high treason, collaboration, often, as we see, the relevant actions are committed, in particular, in the digital space, in the Internet space. It is obvious that the fate of criminal proceedings, that is, how effective their investigation and trial will be, depends on how the data, often contained in the public domain, can be recorded,” - said Oleksandra Yanovska.

She reminded that any evidence was evaluated in terms of several qualitative criteria: relevance, sufficiency, reliability, admissibility. Verification of digital evidence is probably the most difficult and problematic issue. In fact, the reliability of evidence directly depends on the method of its collection and recording.

"We may face a situation where the principle of immediacy of examination of digital evidence by the court cannot be observed. For example, there is open data, it is fixed in a certain way, but then in open sources it changes or disappears. In this situation, it is necessary to apply the recommendation for archiving data contained in open sources. Investigators, relevant professionals and judges must have a clear understanding of this algorithm. Unfortunately, today we cannot operate with such an algorithm that would give an answer to the question of what should be the sequence of storing data contained in open sources so that there are no questions in court regarding the reliability of such data," said the judge of the Criminal Cassation Court within the Supreme Court.

According to her, there are cases when criminal proceedings reach the stage of judicial proceedings and the court faces a dilemma: to adhere to the principle of immediacy of examination of evidence (sometimes it is not possible to comply with it, because following the relevant link on the Internet does not produce results or other information is already posted on the link) or to consider that duly recorded and archived data is the original digital information, which is most often the primary, main, and sometimes the only evidence of a person’s guilt in a particular criminal offence.

"In such cases, it is important to have a clearly defined single, unified algorithm of actions that must be observed by law enforcement agencies and that judges and all participants in criminal proceedings must be familiar with," Oleksandra Yanovska said.

The recording method currently in use, such as the regular copy method, she said, did not provide the necessary level of verification, audit of the data stored and then actually used as the original electronic document or digital data.

"In criminal proceedings, courts must use a standard of authenticity. To comply with it, it is necessary to develop algorithms for storing, recording and further use, verification, audit of digital data,"- said the speaker.

Arkadii Bushchenko, Judge of the Criminal Cassation Court within the Supreme Court, said that, in his opinion, the issue of the admissibility of electronic evidence did not arise. All problems concern the reliability of such evidence.

"I am surprised by the current trend towards making the assessment of the reliability of electronic evidence dependent on legislation. Information technologies is a dynamic industry, and if we write in the law today how to collect, record and store electronic evidence, this may prove wrong in the future development of information technologies", - said Arkadii Bushchenko.

According to him, there is no such regulation at the legislative level, for example, in classical fingerprinting studies, when the determination of reliable research methods is left to the discretion of the scientific community. This also applies to forensic and other fields, where you need to have certain specialized knowledge to understand the validity of a particular piece of evidence.

"No one defines in the law all the details, technologies, how this evidence is collected and evaluated, how it is presented. Therefore, there is a certain danger in such attention to electronic evidence. After all, if this issue is resolved at the legislative level, then, as is often the case with other types of evidence, when the form is correct, the judge may perceive such evidence as reliable. In fact, this is not always the case," said the SC judge.

In addition, during the event, the CoE experts highlighted the admissibility of information from open sources and / or electronic evidence in the framework of national criminal proceedings in Ukraine, the applicable international legal framework and standards for electronic evidence and evidence obtained from open sources.

The event was also attended by Rasim Babanly, Head of the Department for Analytical and Legal Work of the Supreme Court, and Lina Hubar, Head of the Division of International and Legal Cooperation of the Supreme Court.

The online event was organized by the Council of Europe project "Respect for Human Rights in the Criminal Justice System of Ukraine", the Supreme Court, the Prosecutor General's Office, and the Training Center for Prosecutors of Ukraine.