Electronic evidence in judicial practice

Electronic document: does he today evidence based?

The concept of "electronic document" in the legal field of Ukraine appeared in 2003 with the adoption of the Law of Ukraine "On electronic documents and electronic document circulation" and the law of Ukraine "On electronic digital signature".

The electronic document is a document in which information is recorded in the form of electronic data, including mandatory requisites of the document (article 5 of the Law of Ukraine "On electronic documents and electronic document flow").

The legislator has equated the electronic document which establishes the contents of the transaction in the written form of the contract.

In accordance with the substantive law of Ukraine, namely article 207 of the Civil code of Ukraine, the transaction shall be deemed concluded in writing if its content is recorded in one or several documents (including electronic), exchanged between the parties.

As for the question on the use of electronic document as evidence, the following should be noted.

The evidence, according to article 57 of the Civil procedural code of Ukraine, any factual data, on which basis the court establishes presence or absence of circumstances substantiating demands and objections of the parties and other circumstances relevant to resolution of the case. This data set, including on the basis of written evidence, which fully include electronic documents.

Similar to the concept of evidence is defined also in article 32 of the Economic procedural code of Ukraine, articles 84, 99 of the Criminal procedure code of Ukraine and article 69 of the code of administrative procedure of Ukraine.

In criminal proceedings, a document is created to save information of the material object containing fixed by means of written signs, sound, image, etc. information, which can be used as proof of facts or circumstances established during criminal proceedings. Documents may include materials of photography, sound recordings, videos, and other media (including electronic).

I can say that the electronic document may be considered by the court along with other evidence, including the written. But, for the recognition of electronic document evidence, the latter must still meet the requirements stipulated by Law, that is to have the mandatory details.

Should a dispute arise between the subjects of contractual relations, should be capable of providing a report reflecting information on the date of conclusion, parties, subject matter and other terms of the contract, but also information about the correspondence of the parties, the date of the direction, obtaining the emails and their content.

To identify the author of an electronic document in accordance with applicable law an electronic signature, but before October 30, 2014 it was a mandatory attribute of an electronic document. At the same time part 2 of article 6 of the Law "On electronic documents and electronic document circulation" provided that the electronic signature finishes creating of electronic document. But, if such signature is not used, the time of creation of the electronic document Law is not defined.

The question arises: is it possible to read a document, if there is no signature of the persons authorized to create it?

On the widespread use of electronic documents in practice state authorities said the adoption of the list of normative-legal acts of Ukraine, such as:

Resolution of the Cabinet of Ministers of Ukraine of 17 July 2009 No. 733 "On the electronic exchange of official documents in the Executive power."

Order of the Ministry of revenues and duties of 31.12.2013, p. № 898 "On approval of the format and presentation of documents in electronic form to an electronic check";

The decision of the National Commission on securities and stock market 28.08.2014, p. №1120 "On approval of the Procedure of exchange of electronic documents of the National Commission on securities and stock market and the Central Depository of securities";

The order of the Supreme administrative court of Ukraine dated 20.01.2015 p. No. 3 "On implementation of the project for the exchange of electronic documents between the court and the litigants";

The order of the Chairman of the Verkhovna Rada of Ukraine on 19.05.2015. №698 "On priority measures on implementation of the electronic document in the Verkhovna Rada of Ukraine";

Order of the Ministry of justice of Ukraine and the Ministry of Finance of Ukraine from 09.10.2015 No. 1918 / 5/869 "About information exchange between the Unified state register of legal entities and physical persons-entrepreneurs and information systems of the State fiscal service of Ukraine, the exchange of documents in electronic form" ;

And this is only a small part of the volume of the legal acts regulating the use of the electronic document.

Another novel application of electronic paper was the adoption of the Law of Ukraine "On electronic Commerce". This Law regulates legal relations in the field of e-Commerce during the Commission of electronic transactions.

According to this Law made possible the conclusion of electronic contracts and use of electronic digital signature.

Therefore, such an electronic contract may be subject to the consideration of the court and the relevant evidence that a given party to a dispute.

It should be noted that the common judicial practice on the issues of recognition of electronic documents as evidence in civil and commercial cases is not common because there can be as much as develop relations on the use of electronic documents in civil and economic relations.

Unfortunately, these relations are developing very slowly. The subjects of civil or economic relations, prefer the conclusion of the paper documents with the affixing to them of signatures and seals. This is caused primarily by imperfection of the legislation on electronic document circulation, as well as distrust of this form of drafting, if we are talking about the relationship between two entities that, for example, want to contract for delivery of the goods.

However, if we are talking about reporting to the tax authorities, the electronic document is widely popular.

However, in practice very common disputes between taxpayers and tax authorities, where the latter is denied recognition to the electronic documents (e-statements). Generally, the courts prefer the arguments of the taxpayer about recognition illegal decisions of tax authorities about the refusal to accept electronic statements.

An example of an ambiguous interpretation of the concept of evidence the ruling of the Kyiv economic court of appeal dated 13.07.2011, case No. 35 / 409.The court took for granted the evidence in the case of email correspondence between plaintiff and defendant, in this case, the correspondence was carried out with e-mails and letters had no digital signature.

The court declared: "the appellant's Arguments that the emails may not be proper evidence in the case, citing provisions of the Law of Ukraine "On electronic documents and electronic document circulation", are false, because in accordance with paragraph 2 of part 1 of article 207 of the civil code of Ukraine the transaction will of the parties can be expressed by means of teletype, electronic or other technical means of communication. The disputed contract does not contain provisions regarding the electronic document, but only defines the form of sending of the report. The plaintiff on the original claim have been met the requirements of the Annex No. 1 to the agreement, the report to the defendant on the original claim was sent both in electronic and in paper form."

Consequently, the court took as evidence an e-mail, but had not found the person who compiled it, from which it was sent, had such a person of authority its preparation and direction. The court will not be able to establish if such circumstances does not recognize the very party on whose behalf this letter was created.

The way out of this situation is the improvement of the current legislation by introducing for parties of economic relations, wishing to conclude contracts in electronic form or to correspond, for example, contracts for the supply of goods, provision of services, the so-called intellectual platform where participants can register as subjects of relations and to digital signature. This system should include all levels of protection from unauthorized interference.

In the event of any dispute between the subjects of contractual relations should be capable of providing a report reflecting information on the date of conclusion, parties, subject matter and other terms of the contract, but also information about the correspondence of the parties, the date of the direction, obtaining the emails and their content.