Screenshots, Telegram Channels, and Videos from the Internet: Can They Be Full-Fledged Evidence in Court
Judges of the Grand Chamber of the Supreme Court spoke 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 Training Center for Prosecutors of Ukraine.
During the event, they presented an analysis of current judicial practice regarding the specifics of using electronic evidence collected by intelligence methods based on open sources (OSINT).
Thus, the Supreme Court emphasized that the OSINT toolkit has become one of the key tools in investigating war crimes and crimes of aggression. At the same time, the current criminal procedural legislation of Ukraine does not contain a definition of the term "OSINT." The absence of special regulatory provisions becomes a basis for the defense side to raise issues regarding the relevance and admissibility of such evidence.
Despite legislative gaps, the Supreme Court has already formed a stable and consistent law enforcement practice. An analysis of several Supreme Court rulings in cases concerning state treason, collaboration activities, and encroachments on territorial integrity shows that information obtained from the "internet" is evaluated by courts according to the general rules of the Criminal Procedure Code of Ukraine.
Accordingly, the Supreme Court highlighted the following key legal positions of the Court:
- Procedural consolidation: investigative bodies have the right to review publicly available internet resources, websites, and Telegram channels in accordance with Article 237 of the Criminal Procedure Code of Ukraine. The content of digital information recorded in the protocol, reflecting the circumstances of a criminal offense, is admissible evidence;
- Access to open data: searching for and obtaining information from sources whose access is not restricted by their owner (for example, official websites of Russian Federation state bodies or freely available video recordings) does not require prior permission from an investigative judge;
- Criteria for authenticity of form: the absence of an electronic digital signature, the use of a foreign language in recorded publications, or providing evidence in the form of digital copies (DVD files, screenshots) is not an unconditional reason to recognize them as inadmissible or irrelevant under Articles 86–89 of the Criminal Procedure Code of Ukraine, if they were obtained without violations of procedural law.
Finally, the Supreme Court noted that the results of monitoring open sources and the digital environment are mostly attached to the case materials as documents (in accordance with Article 99 of the Criminal Procedure Code of Ukraine) and as annexes to protocols of investigative (search) actions (according to Article 105 of the Criminal Procedure Code of Ukraine).
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