The identification of electronic evidence as a means of proof and the material carrier of such a document is unfounded

"The identification of electronic evidence as a means of proof and the physical medium of such a document is unfounded, because the characteristic feature of an electronic document is the lack of rigid binding to a particular physical medium" - from the legal position set out in the decision of the joint chamber of the Criminal Court of Cassation of the Supreme Court of March 29, 2021 (case № 554/5090/16-k).

Circumstances of the case

In the cassation appeal, the defense counsel requested to overturn the verdict of the court of first instance in connection with the incorrect application of the law of Ukraine on criminal liability and the decision of the appellate court - due to significant violation of the criminal procedure law and to appoint a new trial in the court of first instance.

The defense counsel, in particular, noted that the technical means of fixing were incorrectly indicated, the information carrier was not specified, the original technical information carrier of the recorded procedural action was not added to the protocol, and only copies of the video on disks were added. In addition, according to the defense counsel, the investigative experiment did not establish the mechanism of inflicting bodily harm on the person.

Position of the Supreme court

From the protocol of the investigative experiment it can be seen that the specified investigative action was recorded with the help of a video camera. An optical disc with video is attached to the protocol of the specified investigative action.

In accordance with Part 3 of Art. 99 of the CPC, the original of the document is the document itself, and the original of the electronic document is also its display, which is given the same meaning as the document. At the same time under Part 1 of Art. 99 of the CPC, a document is a material object specially created for the purpose of storing information, which contains information recorded by means of written signs, sound, images, etc., which can be used as evidence of a fact or circumstance established during criminal proceedings, including materials sound recordings and electronic media.

The identification of electronic evidence as a means of proof and the material carrier of such a document is unfounded, as a characteristic feature of the electronic document is the lack of rigid binding to a particular material carrier. In the case of storage of an electronic document on several electronic media, each of the electronic copies is considered the original electronic document.

In order to fulfill the tasks of criminal proceedings, given the provisions of the Law of Ukraine "On Electronic Documents and Electronic Document Management", the admissibility of an electronic document as evidence cannot be denied solely on the grounds that it has an electronic form (Part 2 of Article 8). According to Art. 7 of this Law in the case of its storage on several electronic media, each of the electronic copies is considered the original electronic document. The same electronic document can exist on different media. All identical copies of an electronic document can be considered as originals and differ from each other only in time and date of creation. The issue of identifying an electronic document as an original can be resolved by the authorized person who created it (using special programs to calculate the checksum of a file or file directory - CRC-amount, hash-amount), or if there are appropriate grounds by conducting special research.

In this proceeding, as an appendix to the NSDR protocols, a DVD № 1495k was attached, and in pursuance of the court decision of March 15, 2017 on the appointment of forensic examination, declassified original media were provided, which recorded the results of the NSDS - flash drives № 1386 and 1387, which attached as evidence in the proceedings (vol. 2, a.s. 62) and the inclusion of which was requested by the defense counsel. According to the materials of the proceedings, flash drives are the primary carriers of electronic documents of the NSDS.

The Criminal Procedure Law contains guarantees for the protection of the legal rights and interests of the parties in criminal proceedings, where in Art. 266 of the CPC established requirements for storage until the entry into force of the court verdict of the technical means used during the NSDC, as well as the primary media of the information received. If there are reasonable grounds, the media and technical means by which the information is obtained may be the subject of research by relevant specialists or experts in the manner prescribed by this Code. These guarantees in this criminal proceeding are fully provided by the pre-trial investigation body.

In the criminal proceedings against PERSON_1 there is no objective evidence that the optical disk № 1495k, attached to these protocols, contains electronic documents created not during the implementation of the NSDS on April 28, 2016, but at other times, or in other circumstances or unauthorized person, and the defense refused to conduct a re-examination, as discussed above.

The court of first instance based on the results of the evaluation of evidence in the manner prescribed by Art. 94 of the CPC, assessing the above protocols of the NSDC, took into account the presence in the materials of petitions for permission to conduct them and the decision of the Court of Appeal of Kharkiv region to grant permission to conduct NSDC, which are the basis for their conduct, reasonably noted that requirements of Articles 246-257 of this Code, are appropriate and admissible evidence.

The Joint Chamber agrees with such conclusions.

Therefore, the defense counsel's arguments about the inadmissibility of the protocol of the investigative experiment as proof of the convict's guilt due to the lack of the original technical video, are not based on the law and do not refute the court's conclusions on the admissibility of this evidence.