Imagine this: a case turns on a key screenshot or video recording. But a lawyer challenges the evidence, pointing out that the law does not define what exactly constitutes electronic evidence. It sounds like a technicality — but in practice it is one of the most common and effective grounds for excluding evidence.

The Gap in the Law

Ukraine’s Code of Criminal Procedure (CCP) uses the concepts of “physical evidence” and “documents” but provides no separate definition of electronic evidence. This creates legal uncertainty: which category does a Telegram chat belong to — a document or physical evidence? The answer determines the requirements for collection, storage, and submission.

Scholars and practitioners point out that electronic evidence has a unique legal nature that does not fit neatly into either existing category:

• It exists in intangible form, but can be materialised through printing or recording onto a storage medium.
• It can be copied countless times with no difference between the “original” and the “copy”, undermining the traditional meaning of those terms.
• It can exist simultaneously in multiple locations — on a device, a server, or in the cloud.
• It can be destroyed instantly or, conversely, automatically restored from a backup.

How Courts Resolve This Today

In the absence of a clear statutory definition, Ukrainian courts apply several approaches:

• Analogy of law. Electronic evidence is evaluated under the rules applicable to documents or physical exhibits, depending on the circumstances.
• International standards. Courts are increasingly drawing on ECHR case law and EU member state experience to determine admissibility criteria.
• Forensic examination. To resolve technical questions about the nature and authenticity of evidence, a court may order a computer-technical forensic examination.

What This Means in Practice

Legal uncertainty cuts both ways. On one hand, it complicates investigative work: a mistake in classifying evidence can render it inadmissible. On the other, it is a defence tool: a skilled lawyer can challenge evidence if the collection procedure did not comply with the requirements applicable to the chosen category.

If your case involves digital data, the first step is to establish how it was obtained and how the prosecution has classified it.

This article is based on: Petryk V.V. “The Concept and Legal Nature of Electronic Evidence in Ukrainian Criminal Proceedings” // Proceedings of the IX International Scientific and Practical Conference, 2025. Read the original article.

Have questions about electronic evidence in your case? Contact us — we offer a free initial consultation.