Why electronic evidence is often challenged – The Supreme Court highlighted one of the main problems
The Supreme Court drew attention to the challenges of legalizing OSINT evidence and the necessity of "sieving" it through a strict "admissibility sieve." The Supreme Court judges noted that until relevant amendments are made to the criminal procedural legislation, Ukrainian courts and pre-trial investigation bodies, in addition to the provisions of the current Criminal Procedure Code of Ukraine and the Supreme Court's legal positions, should consider the practice of the International Criminal Court, given Ukraine's ratification of the Rome Statute.
This was noted by the Grand Chamber of the Supreme Court during a speech at the round table "Issues of admissibility and authenticity of electronic evidence obtained from open sources (OSINT) in criminal proceedings concerning international crimes" held at the Prosecutors' Training Center of Ukraine.
The Supreme Court highlighted the experience of ICC judge Joanna Korner (a British lawyer with over 45 years of experience, formerly a senior prosecutor at the International Tribunal for the former Yugoslavia), who previously shared with Ukrainian judges the ICC's practice, which actively uses digital and electronic evidence, emphasizing the importance of proper initial fixation and classification of such evidence. The Supreme Court noted that one of the main problems most often pointed out by the defense is the risk of violating the chain of custody of electronic evidence and their metadata – from the original source to the court decision. Therefore, all participants in criminal proceedings must have a common understanding of the principles and rules for handling such data.
The Supreme Court also emphasized the problem of the volume of digital materials at the stage of disclosure of evidence to the parties (in accordance with Article 290 of the Criminal Procedure Code of Ukraine and by analogy with Article 67 of the Rome Statute).
At the same time, the Supreme Court noted a positive trend in the practice of first-instance courts regarding the evaluation of this type of evidence, as Ukrainian judges are already actively implementing international standards, providing detailed and reasoned assessments of examined OSINT evidence in court decisions, indicating website addresses, adhering to the process of their verification, and giving substantive responses to defense objections. The courts apply the provisions of the Berkeley Protocol not as a direct source of law but as an authoritative recommendation that strengthens the guarantee of admissibility assessment of evidence to ensure overall fairness of the trial.
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