Supreme Court judges take part in conference on electronic evidence exchange

Representatives of the Supreme Court, law enforcement agencies of Ukraine, the Council of Europe, the European Court of Human Rights, international organisations and civil society joined a conference on the exchange of electronic evidence held at the Council of Europe.

The ability to effectively respond to the challenges posed by cybercrime and electronic evidence is a pressing issue for Ukraine today. This conference was aimed at improving the handling of electronic evidence for its further use in criminal proceedings related to war crimes and gross violations of human rights in the context of Russian aggression against Ukraine.

Judges of the Supreme Court in the Criminal Cassation Court Nataliia Bilyk and Svitlana Yakovlieva, as well as Olha Brynzanska, Head of the Division for Analytical and Legal Work of the Criminal Cassation Court of the Department for Analytical and Legal Work of the Supreme Court, presented a report on the Evaluation of Electronic Evidence by the Courts of Ukraine.

The presentation was focused on the fact that the Criminal Procedure Code of Ukraine does not provide for separate provisions on electronic evidence, which increases the importance of judicial case law, primarily the case law of the Supreme Court, regarding the evaluation of electronic evidence in criminal proceedings. Currently, a stable case law on the use of electronic evidence has been formed.

At the same time, questions arise regarding the assessment of electronic evidence obtained from open sources. This is evidence obtained from photography, sound recording, video recording and other media (including computer data) contained in open or closed networks. It can be considered by the court as a basis for entering information into the Unified Register of Pre-trial Investigations or as evidence recorded in the protocols of inspection of Internet resources, investigative reports or in annexes to such protocols.

The court practice on this issue is still being formed and is largely determined by the circumstances of a particular criminal proceeding and the procedural behaviour of the parties. A significant number of criminal proceedings that are considered under the procedure of special court proceedings (in absentia) and in which the prosecution refers to electronic evidence from open sources are criminal offences against the foundations of national security, as well as against peace, human security and international law and order. Many of these proceedings are not subject to cassation review, which limits the ability of the Supreme Court to develop practice in assessing electronic evidence obtained from open sources.

The event was organised by the team of the CyberUA project, which is a contribution to the Council of Europe's Action Plan for Ukraine for 2023-2026, in cooperation with project partners.