Husiev O. Electronic evidence in civil proceedings of Ukraine

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.