EVIDENCE IN ELECTRONIC FORM IN CRIMINAL PROCEEDINGS

Abstract

The article is aimed at highlighting the essence of evidence in electronic form and determining which type of procedural sources of evidence in criminal proceedings they belong to. The author notes that the concepts of “digital evidence” and “electronic evidence” are mostly used as synonyms in the specialised literature and official documents. However, it is technically correct to use the category of “digital evidence”. At the same time, digital evidence is electronic evidence generated in a numerical format or converted into it. The author argues that several approaches to the interpretation of the essence of electronic evidence have been formed in legal doctrine and legal regulation. Most scholars understand electronic evidence to be data or information that has emerged as a result of the use of digital technology and relevant software and can be used in court proceedings. Other researchers define electronic evidence as objects of digital (electronic) dimension that may be relevant to criminal proceedings. The third approach to the interpretation of electronic evidence is any evidence obtained from data contained in or produced by any device whose functioning depends on software or data stored or transmitted through a computer system or network. It is substantiated that the evidence in question should be more correctly called “evidence in electronic form”, since this name reflects the environment for creating, using, storing, displaying, detecting, recording, retrieving and examining information relevant to criminal proceedings. The electronic form of information is an intangible version of other forms of information (written, graphic, audiovisual and their combination). It can reproduce absolutely all elements of information in a tangible form. Moreover, the electronic form has the advantage of containing parameters that are not available in other forms (e.g. metadata). The author’s definition of evidence in electronic form is formulated – it is information created, processed, stored or transmitted by means of analogue or digital signals which is relevant for criminal proceedings. The author notes that the CPC of Ukraine does not yet distinguish evidence in electronic form. Considering them in the context of documents, the legislator has extended the general rules for the use of evidence in criminal proceedings to electronic evidence. It is emphasised that due to the peculiarities of electronic evidence, there are ongoing discussions about its belonging to procedural sources of evidence. The author concludes that electronic evidence is a new social and legal phenomenon in the information age. Compared to non-electronic evidence, it has its own nature which determines its peculiarities and requires a different mechanism of proof, which indicates an independent place in the system of procedural sources of evidence.