E-evidence and e-court in the context of the covid-19 pandemic: a study from Ukraine
The possibility of using information technology in courts can be called a novelty and a progressive innovation in Ukraine. Factors of increasing the efficiency of openness and transparency of justice, reducing court proceedings and procedural deadlines.
| Рубрика | Государство и право |
| Вид | статья |
| Язык | английский |
| Дата добавления | 12.09.2022 |
| Размер файла | 34,5 K |
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After analysing the summary of court rulings in Ukraine in the context of the COVID-19 pandemic, it was found that the courts pay attention to the authenticity of the person who is the author of such documents and is a party to the case.
It should be noted that a separate category of electronic evidence is those items that can be permanently removed. For example, a post on Facebook can be deleted by the author at any time, and messages on Messenger, Telegram, Viber, or WhatsApp can be deleted by one of the interlocutors, which will result in their deletion for all chat participants. In this case, recovering deleted messages will be impossible or extremely difficult. For example, the messenger Telegram permanently deletes both the content of messages and the traces of their sending; WhatsApp deletes only the content, but also permanently. A similar technology is used by Viber, and the technical support of the service can provide information only about the fact of sending messages or making calls with the date and time, but not their content.
In addition, such a service will be provided only after the account owner verification procedure.
Since the Law stipulates that in case of doubt on the part of another party to the case or the court about the authenticity of electronic evidence, the court must demand the original evidence and, in its absence, refuse to accept the evidence, the removal of messages as originals will mean their complete destruction as evidence. For these reasons, courts often, at the request of one of the parties, take steps to provide such evidence by viewing them in court using interested parties' portable devices (for example, viewing evidence by the court via an Internet link; viewing user posts on Facebook and LinkedIn; or viewing messages in Viber Messenger).
To avoid any doubt on the part of the court of originality, to prevent interference with the content of electronic documents, and to protect electronic files from unwanted changes, one needs to use EDS, which will act as an additional guarantee of personalisation of the author of an electronic document.
In resolving a dispute, the court must thoroughly, fully, and directly examine the evidence presented. The judge, in the process of evaluating the evidence, including an electronic one, carries out mental activity, which determines the relevance and admissibility of the evidence, its reliability, sufficiency, and interconnection in general. This activity is carried out in accordance with the laws of logic and in the conditions established by legal norms. In the third part of Art. 2 of the Code, one of the main principles of commercial litigation is the principle of adversarial proceedings, the essence of which is explained in Art. 13 of this Code. In accordance with parts three and four of Art. 13 of the Code, each party must prove the circumstances that are relevant to the case and to which it refers as the basis of its claims or objections, except as provided by law; each party shall bear the risk of consequences related to the commission or non-commission of procedural actions. Ibid.
The Supreme Court has repeatedly stressed the need to apply the categories of standards of evidence and noted that the adversarial principle ensures the completeness of the investigation of the circumstances of a case. In particular, this principle provides for the burden of proof to be placed on the parties.
At the same time, this principle does not imply the obligation of the court to consider a circumstance alleged by a party as proven and established. Such a circumstance must be proved in such a way as to satisfy, as a rule, the standard of precedence of more compelling evidence, i.e., when the conclusion of the existence of an alleged circumstance in the light of the evidence submitted appears more plausible than the opposite (the Supreme Court rulings of 2 October 2018 in case no. 910/18036/17, of 23 October 2019 in case no. 917/1307/18, of 18 November 2019 in case no. 902/761/18, of 4 December 2019 in case no. 917/2101/17).
A similar standard of proof was expressed by the Grand Chamber of the Supreme Court in its decision of 18 March 2020 in case no. 129/1033/13-ts (proceedings no. 14-400tss19).
The implementation of the principle of adversarial proceedings in a process and proving before the court the validity of one's claims is a constitutional guarantee provided for in Art. 129 of the Constitution of Ukraine.
The fairness of a trial must be realised, including in the administration of justice by the court, without a formal approach to the consideration of each particular case.
Adherence to the principle of a fair trial is extremely important in resolving court cases, as its implementation ensures that a party, regardless of its level of professional training and understanding of certain requirements of civil proceedings, is able to protect his/her interests.
In addition, the Supreme Court emphasises that on 17 October 2019, the Law of Ukraine of 20 September 2019 no. 132-IX `On Amendments to Certain Legislative Acts of Ukraine Concerning the Promotion of Investment Activity in Ukraine' entered into force. The Law, in particular, amended the Code of Commercial Procedure of Ukraine and changed the title of Art. 79 of the Code of Commercial Procedure of Ukraine from `Sufficiency of Evidence' to a new one - `Probability of Evidence' - and set it out in a new wording with the actual introduction of the standard of proof `probability of evidence' in the commercial process. The standard of proof, `probability of evidence', as opposed to `sufficiency of evidence', emphasises the need for the court to compare the evidence provided by the plaintiff and the defendant.
The difficulties that currently exist in the examination of electronic evidence due to the specificity of individual acts of judicial examination give us reason to believe that the evaluation of evidence will be carried out for a long time by the inner conviction of the judge. This is confirmed by the conducted analysis of court decisions on different requirements and interpretations by courts of the same type of evidence.
In addition, the study of the summary of court rulings of Ukraine in the context of the COVID-19 pandemic did not reveal any electronic evidence received by the court by e-mail or through the electronic office of the subsystem `Electronic Court'. In our opinion, this is because the subsystem `Electronic court' currently operates in a test mode, and the participants in the process do not have all the opportunities provided by this system to exercise their rights to submit electronic evidence in electronic form.
CONCLUSIONS
In court proceedings, the necessary conditions for the correct assessment of evidence by the court are establishing the connection of evidence with the circumstances of the case, submitting evidence, and collecting and seizing evidence.
To use electronic data as evidence in court, it must be obtained in accordance with the procedural rules of evidence collection. However, procedural codes do not contain procedural rules for the collection and seizure of electronic evidence, such that the latter could be declared admissible and used as evidence. The lack of legal regulation on the collection, seizure, and submission of electronic evidence should not be a barrier to the protection of legal rights and legally protected interests of citizens and businesses. On the contrary, this regulation should correspond to the relations that it is designed to regulate.
Currently, the legal practice for deciding which electronic evidence, in what form, and on what media are admissible means of proof is ambiguous. The legislators have not specified how to distinguish genuine electronic evidence from forgery. The presence of an electronic signature on electronic evidence is provided for in the procedural codes only if the document is submitted as an electronic copy. At the same time, the relevant law states that an EDS is mandatory on the original electronic document. Due to this, there are different applications of the same rules of law.
It should be noted that the legislators have not defined the procedure for certifying paper copies of electronic evidence. In addition, there are no criteria for which electronic evidence is the original and which one is a copy (this is especially important for electronic evidence such as websites, multimedia, etc.).
Another issue is that, by the time the court considers the case, such information can easily be deleted, which significantly reduces the chances of proving its existence. The information may also be changed by the author, custodian, or user.
The legislators have not defined the criteria for which electronic evidence is the original and which one is a copy because the originals of such evidence, as well as copies, will often be placed on external devices such as memory cards, disks, floppy disks, etc. There are some difficulties in proving the date and time of creation of the original electronic evidence. As the original electronic evidence is the original source, and this is what differentiates it from a copy that is created later, it must contain the date and time of its creation.
The legislators also need to make it clear that the originals of electronic evidence are seized only in exceptional cases. It is equally important to provide a detailed procedure and form of attachment, registration, and storage of evidence in the case file with the definition of the range of responsible persons.
Another significant problem that needs to be addressed by the legislators is the lack of a unified form of digital evidence and proper technical support. When examining electronic evidence, judges sometimes face the problem of not being able to view certain files during a trial due to lack of technical means, or when the files have a format that cannot be reproduced without having special keys or involving a specialist, which, in turn, delays the proceedings.
REFERENCES
1. The Code of Commercial Procedure of Ukraine of 6 November 1991 <zakon3.rada.gov.ua/ laws/show/1798-12> accessed 5 September 2021.
2. The Code of Civil Procedure of Ukraine of 18 March 2004 <zakon.rada.gov.ua/laws/ show/1618-15#Text> accessed 5 September 2021.
3. The Code of Administrative Proceedings of Ukraine of 6 July 2005 <zakon.rada.gov.ua/ laws/show/2747-15#Text> accessed 5 September 2021.
4. Law of Ukraine `On Electronic Documents and Electronic Document Circulation' of 22 May 2003 <zakon0.rada.gov.ua/laws/show/851-15> accessed 5 September 2021.
5. Shabelnyk v Ukraine App no 16404/03 (ECtHR, 19 February 2009) accessed 5 September 2021.
6. Schenk vSwitzerland Series A no 140 (ECtHR, 12 July 1998) accessed 5 September 2021.
7. Teixeira di Castro v Portugal App no 44/1997/828/1034 (ECtHR, 9 June 1998) accessed 5 September 2021.
8. Salov v Ukraine App no 65518/01 (ECtHR, 6 September 2005) accessed 5 September 2021.
9. Law of Ukraine `The Constitution of Ukraine' of 28 June 1996 <zakon.rada.gov.ua/laws/ show/254%D0%BA/96-%D0%B2%D1%80#Text> accessed 5 September 2021.
10. The International Covenant on Civil and Political Rights, ratified by Ukraine on 19 October 1973 <zakon.rada.gov.ua/laws/show/995_043#Text> accessed 5 September 2021.
11. The Convention for the Protection of Human Rights and Fundamental Freedoms, ratified on 2 October 2013 <zakon.rada.gov.ua/laws/show/995_004#Text> accessed 5 September 2021.
12. Law of Ukraine `On the Status of Judges' of 15 December 1992 <https://zakon.rada.gov.ua/ laws/show/1402-19#Text> accessed 5 September 2021.
13. Law of Ukraine `On Access to Judicial Decisions' of 22 December 2005 <https://zakon.rada. gov.ua/laws/show/3262-15#Text> accessed 5 September 2021.
14. Judicial information systems <https://ics.gov.ua/ics/about/acts> accessed 5 September 2021.
15. Ruling in case no 923/566/19 [2021] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/88244923> accessed 5 September 2021.
16. Ruling in case no 820/10538/15 [2020] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/89217590> accessed 5 September 2021.
17. Ruling in case no 910/1162/19 [2020] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/88244984> accessed 5 September 2021.
18. Ruling in case no 753/10840/19 [2020] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/90385050> accessed 5 September 2021.
19. Decision in case no 916/2323/20 [2020] The Commercial Court of Odesa Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/93436978> accessed 5 September 2021.
20. Ruling in case no 9901/977/18 [2021] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/95382820> accessed 5 September 2021.
21. Ruling in case no 922/51/20 [2021] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/94517830> accessed 5 September 2021.
22. Ruling in case no 910/7151/20 [2021] The Northern Commercial Court of Appeal. United state register of court decisions <https://reyestr.court.gov.ua/Review/95902020> accessed 5 September 2021.
23. Ruling in case no 911/2498/18 (911/2822/20) [2021] The Northern Commercial Court of Appeal. United state register of court decisions <https://reyestr.court.gov.ua/ Review/95467663> accessed 5 September 2021.
24. Decision in case no 916/1890/20 [2020] The Commercial Court of Odesa Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/92886943> accessed 5 September 2021.
25. Decision in case no 414/317/20 [2020] The Kreminna Raion Court of Luhansk Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/88440254> accessed 5 September 2021.
26. Decision in case no 580/4136/20 [2020] The Cherkasy District Administrative Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/91845219> accessed 5 September 2021.
27. Decision in case 584/991/20 [2020] The Putyvl Raion Court of Sumy Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/91965468> accessed 5 September 2021.
28. Decision in case no 766/19559/20 [2021] The Kherson City Court of Kherson Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/94853426> accessed 5 September 2021.
29. Ruling in case no 127/19854/20 [2021] The Seventh Administrative Court of Appeal. United state register of court decisions <https://reyestr.court.gov.ua/Review/94601364> accessed 5 September 2021.
30. Decision in case no 922/49/20 [2020] The Commercial Court of Kharkiv Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/89429009> accessed 5 September 2021.
31. Decision in case no 908/1639/20 [2020] The Commercial Court of Zaporizhzhya Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/93532917> accessed 5 September 2021.
32. Ruling in case no 904/5656/19 [2020] The Central Commercial Court of Appeal. United state register of court decisions <https://reyestr.court.gov.ua/Review/92383245> accessed 5 September 2021.
33. Decision in case no 908/1296/20 [2020] The Commercial Court of Zaporizhzhya Oblast. United state register of court decisions <https://reyestr.court.gov.ua/Review/92526133> accessed 5 September 2021.
34. Ruling in case no 910/1162/19 [2020] The Supreme Court. United state register of court decisions <https://reyestr.court.gov.ua/Review/88244984> accessed 5 September 2021.
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