Cybercrime and electronic evidence: Supreme Court judge speaks on the evaluation of electronic evidence in criminal proceedings

The rules for assessing electronic evidence for its admissibility are set out in the resolutions of the Joint Chamber of the Criminal Cassation Court of the Supreme Court (of 29 March 2021 in case No. 554/5090/16-к, of 25 September 2023 in case No. 208/2160/18).

This was stated by Supreme Court Judge of the Criminal Cassation Court Nataliia Marchuk during the presentation of the course ‘Cybercrime and Electronic Evidence’ within the framework of the Council of Europe project ‘HELP (Human Rights Education for Legal Professionals) for Ukraine including during wartime'.

The speaker recalled that electronic evidence belongs to the category of documents and that the physical media on which it is stored are recognised as physical evidence. According to part 1 of Article 99 of the Criminal Procedural Code of Ukraine, a document is a material object specially created for the purpose of storing information, containing information recorded by means of written signs, sounds, images, etc., which can be used as evidence of a fact or circumstance established in criminal proceedings. Documents, provided that they contain the information provided for in part 1 of Article 99 of the Criminal Procedural Code of Ukraine, may include photographs, sound recordings, video recordings and other media (including computer data).

The original of an electronic document is its reflection, which has the same meaning as a document (part 3 of Article 99 of the Criminal Procedural Code of Ukraine). At the same time, a duplicate of a document (a document made in the same way as its original), as well as copies of information, including computer data contained in information (automated) systems, electronic communication systems, information and communication systems, computer systems, their integral parts, made by an investigator, prosecutor with the participation of a specialist, shall be recognised by the court as an original document (part 4 of Article 99 of the Criminal Procedural Code of Ukraine).

As stated in the resolution of the Joint Chamber of the Criminal Cassation Court of the Supreme Court of 29 March 2021 in case No. 554/5090/16-к, in order to fulfil the tasks of criminal proceedings, taking into account the provisions of the Law of Ukraine ‘On Electronic Documents and Electronic Document Management’, the admissibility of an electronic document as evidence cannot be denied solely on the grounds that it is in electronic form (part 2 of Article 8). In accordance with Article 7 of this Law, if an electronic document is stored on multiple electronic media, each electronic copy is considered to be an original electronic document. The same electronic document can exist on different media. All copies of an electronic document that are identical in content may be treated as originals, differing only in time and date of creation. Issues related to the identification of an electronic document as an original may be resolved by the authorised person who created it (using special software to calculate the checksum of a file or a directory containing files - CRC-sum, hash-sum) or, if there are appropriate reasons, by special research.

Nataliia Marchuk drew attention to the fact that electronic evidence includes files containing text documents, graphic images recorded on a storage medium; files containing photo and video images, audio recordings recorded directly on a mobile phone designed to work in cellular networks; files attached to the protocols of investigative actions and containing information about the course of their conduct, recorded on removable media; websites on the Internet; data from instant messaging systems (messengers), including mobile applications, web services, systems integrated into social networks (Skype, Viber, Telegram, Facebook, messaging); video recordings from surveillance cameras; screenshots (display of an electronic document regardless of electronic or paper form).

The speaker outlined other issues related to the evaluation of electronic evidence in criminal proceedings.

For reference. The HELP course ‘Cybercrime and Electronic Evidence’ covers not only the issues of combating and preventing cybercrime, but also the issues of electronic evidence in criminal proceedings. This course is primarily intended for legal professionals (judges, prosecutors, lawyers, court staff), law enforcement officials, government agencies and non-governmental organisations.

The course is designed to deepen the knowledge of practitioners to effectively apply the standards developed under the Council of Europe Convention on Cybercrime in their daily work.

The course consists of seven modules:

1. Introduction to computers, networks and cybercrime.
2. The Budapest Convention: a general overview.
3. Cybercrime and related offences.
4. Electronic evidence and procedural law.
5. The Budapest Convention: provisions on international cooperation.
6. Human rights in cyberspace.
7. The Second Additional Protocol to the Budapest Convention

The course will provide tools for detecting and investigating cybercrime, as well as collecting, recording and evaluating electronic evidence in terms of relevance, reliability and admissibility. It also aims to ensure the effective investigation of criminal proceedings and bring perpetrators to justice.

The course ‘Cybercrime and Electronic Evidence’ was launched within the framework of the Council of Europe project ‘HELP (Human Rights Education for Legal Professionals) for Ukraine including during the wartime' in cooperation with the National School of Judges of Ukraine and the Training Centre for Prosecutors of Ukraine.