Husiev O. Yu. Electronic evidence in civil proceedings of Ukraine. – Qualifying
scientific work presented as a manuscript.
Ph.D. thesis undertaken in research specialization 081 «Law» (08 – Law). – Taras
Shevchenko National University of Kyiv, Ministry of Education and Science of Ukraine, Kyiv, 2021.
Suggested PhD thesis is a complex independent thorough research devoted to the legal nature of electronic evidence in civil proceedings of Ukraine. In the dissertation the characteristic features of the concept of electronic evidence are investigated. Within this aim, the author focuses on their types, defines the place of electronic evidence in the system of evidence, analyzes the provisions of normative-legal acts that stipulate legal regulation of this sources of evidence. On the basis of foreign experience and judicial practice results the problems of normative maintenance and practical application of electronic evidence in civil proceedings are revealed. The results obtained during the investigation of the aforesaid doctrinal and normative approaches allowed the author to to define the ways of their improvement for the purpose of maintenance of efficiency of electronic evidence as a means of legal protection.
The dissertation presents some technical aspects of the functioning of electronic computing machines and some features of the process of information processing using such machines, which may subsequently affect the evaluation of such information as electronic evidence. Based on the results, it is argued that the key reason for recognizing electronic evidence as an independent means of proof is the unique characteristics of the electrical signal as a tangible medium that constitutes the content of this means of proof. Concurrently, all other features of the concept of electronic evidence are directly derived from this feature.
Although the digital form is not a constitutive feature of the concept of information in electronic (digital) form, it is suggested to change the name of the means of proof ―electronic evidence‖ to ―digital evidence‖ in view of the various ontological aspects indicated by these terms and the significant advantage of digital technologies above all other modern information technologies.
The place of electronic evidence in the system of evidence is predetermined by the following criteria: the nature of the connection with the circumstances of the case, the procedure for the factual data formation, the source of evidence, the form of displaying.
It is concluded that attempts to compile an exhaustive list of types of electronic evidence are futile given the regular emergence of new information technologies. On this basis, it is offered to draw special attention not to the types of information in electronic (digital) form, but to its sources, which, in particular, include: 1)text electronic documents; 2) their individual details; 3) audio and video recordings; 4) web pages and websites; 5) global telecommunication networks; 6) local telecommunication networks; 7) electronic social networks; 8) separate electronic messages; 9) metadata; 10) automated information systems.
The provisions of the current civil procedural legislation of Ukraine are systematically analyzed. Accordingly, a number of defects of legal regulation of electronic evidence are revealed. In author’s opinion, elimination of this problems requires a higher degree of legal certainty of normative prescriptions’ content, presumptions about the reliability and admissibility of information in electronic (digital) form, as well as increasing the number of evaluation concepts.
A thorough study of the concept of authenticity of electronic evidence is undertaken. For the first time, the key features of the concept of the original electronic evidence. Among such peculiarities, in particular, are: the correlation with the concept of copy (duplicate), the primacy of entry into force over the time, the mandatory availability of material basis and special details, excellent attitude of the parties and special legal consequences.
The approach according to which a qualified electronic signature is considered as auniversal criterion for recognizing electronic evidence as an original, given the significantly limited scope of its application and the impossibility of verifying the intentions of a person who used a qualified electronic signature, is questioned.
The approach according to which metadata is considered as the basis for determining the original electronic evidence is also criticized. It is proved that the establishment of the initial copy (original) of electronic evidence is possible only in the case of a complex comparative study of several copies of the same data.
It is offered to introduce in the Civil Procedure Code of Ukraine a presumption of authenticity of electronic evidence in case of proof of proper functioning of the computer and compliance with the rules of its use when obtaining relevant information in electronic (digital) form.
It is argued that the admissibility of electronic evidence depends on its reliability. It is concluded that special rules of admissibility of electronic evidence must envisage the achievements of scientific and technological progress and harmoniously combine them within the established approaches to the evidence evaluation.
The approach according to which the parties to the case can help reduce the number of facts and circumstances that indicate the affiliation or reliability of information in electronic (digital) form that require proof, by acknowledging them, is substantiated. However, the recognition of such facts or circumstances should be assessed on a case-by- case basis, with the special reference to the facts of the case, supporting evidence and the requirements stipulated in applicable law. Furthermore, it is inadmissible to recognize facts or circumstances that justify the admissibility of electronic evidence.
It was found that one of the main obstacles to use of electronic evidence as an effective remedy is the lack of knowledge in the field of information technology. In this vein, it is concluded that the general increase in the level of society’s informatization will contribute to the problem solution regarding the fact that the investigation of electronic evidence almost always requires the use of special expertise.
It is further developed that the most economical and convenient forms of using special expertise in the process of investigation of electronic evidence are those that do not require the involvement of persons who have such expertise. For instance, expert opinion or other document of a competent person without the status of an expert, based on the results of information research in electronic (digital) form out of court.
Given the absence in the current civil procedural legislation of Ukraine of any instructions on the qualifications or competence of a specialist who may be involved in the process of investigation of electronic evidence, the author’s recommendations for the selection of such a specialist based on the facts of the case and the qualification of the specialist.
The concept of organizational and legal error in obtaining or examining the electronic evidence as a deviation or violation of the rules of computer use in obtaining information in electronic (digital) form or its investigation in court, which makes it impossible to establish the true circumstances of the case on the basis of such information. Notably, the human factor is deemed to be the primary factor.
It is emphasized that the use of electronic evidence of a demonstrative nature poses a particular risk to civil proceedings due to the high probability of the interested person changing certain parameters of the evidentiary information, which may mislead the court as to the actual circumstances of the case.
Thus, it is recommended to avoid as much as possible the use of special terminology when drafting procedural documents and providing oral explanations, as well as to use visual materials, including extracts, diagrams, tables, graphs, etc., to ensure ease of perception by all parties to the proceedings the facts and circumstances, substantiating the relevance, reliability or admissibility of electronic evidence.
Keywords: civil proceedings, evidence, means of proof, electronic evidence, relevance of evidence, reliability of evidence, admissibility of evidence, procedural form of evidence, effective remedy, structure, classification, information in electronic (digital) form, obtaining evidence, examination of evidence, evaluation criteria.