Formation of the institute of electronic evidence in the criminal process of Ukraine Cover Image

Формування інституту електронних доказів у кримінальному процесі України
Formation of the institute of electronic evidence in the criminal process of Ukraine

Author(s): A. V. Stolitnii, I. H. Kalancha
Subject(s): Law, Constitution, Jurisprudence, Criminal Law
Published by: Національний юридичний університет імені Ярослава Мудрого
Keywords: evidence; source; electronic; fixation; criminal proceeding; Ukraine;

Summary/Abstract: In this article, we investigate the phenomenon of "electronic evidence" in the criminal proceeding of Ukraine. We conducted an analysis of the statements of scientists and determined that there is no unity in the approaches to the definition of the phenomenon under study. In addition, scientists do not have a common position as to which place the "electronic evidence" takes in the system of procedural sources of evidence. We highlighted the actual problem, which consists in the artificial formation of the Institute of "electronic evidence" in the science of the criminal proceeding. We also express disagreement with the position of the economic procedural, civil procedural and administrative procedural legislation of Ukraine, which separate "electronic evidence". We substantiated our statement with the fact that scientists cannot apply such characteristics as the form of fixing information, the characteristics of the medium of the information or the way of reproduction of data, in order to separate a new source of the evidence. We have analyzed the criminal procedural legislation of European states. They shows the absence of a pan-European practice of legislative consolidation of the institute of "electronic evidence". We notes in the article that the source of information transformed into the evidence by addition to a particular criminal proceeding. This occurs through procedural fixation, in accordance with the CPC of Ukraine. Consequently, the final format of evidence, including the electronic, depends on the nature of the source of information, and on the procedural design, to the same extent. The four sources of evidence may have an electronic form, taking into account the current criminal procedural legislation and current conditions. We conclude that the term "electronic evidence" should be exclusively a theoretical category. We also argue that the institute of "electronic evidence" is artificial and it cannot substitute the electronic form of the fixation of the evidence. We have determined that because of the development of information technology, we can created the electronic information, which will give us the need to expand the sources of evidence - for example, add electronic ones. This will require that we make changes to the criminal procedural law, and that we make a clear distinction between the electronic sources of evidence and the fixation of the evidence in electronic format.

  • Issue Year: 2019
  • Issue No: 146
  • Page Range: 179-191
  • Page Count: 13
  • Language: Ukrainian