What the law says about electronic evidence: definition and legal nature in Ukraine

Imagine the situation: a case turns on a key screenshot of a chat or a video recording. But the defence challenges that evidence, arguing that the law does not define what counts as electronic evidence. Sounds like a technicality? In fact it is one of the most common and most effective grounds for excluding evidence.

A gap in the legislation

The Criminal Procedure Code of Ukraine (CPC) operates with the notions of physical evidence and documents, but gives no separate definition of electronic evidence. This creates legal uncertainty: is a Telegram conversation a document or physical evidence? The answer determines the requirements for collection, storage and submission.

Academics and practitioners point out that electronic evidence has a special legal nature that does not fit entirely into any existing category:

• It exists in intangible form but can be materialised through a printout or a recording on a medium.
• It can be copied without loss of the original, which undermines the traditional notions of original and copy.
• It can exist in several places at once – on a device, on a server, in the cloud.
• It can be destroyed instantly or, conversely, restored automatically from a backup.

How courts deal with this today

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

• Analogy of law. Electronic evidence is assessed under the rules established for documents or physical evidence, depending on the circumstances.
• International standards. Courts increasingly refer to ECtHR case law and the experience of EU states to define admissibility criteria.
• Forensic examination. To resolve technical questions about the nature and authenticity of evidence, a court may order a computer forensic examination.

What this means in practice

Legal uncertainty has a double effect. On the one hand it complicates the work of the investigation: a mistake in classifying evidence may render it inadmissible. On the other hand it is a defence tool: a competent lawyer can challenge evidence if the procedure for obtaining it did not meet the requirements applicable to the chosen category.

If your case involves electronic data, it is important to establish immediately how it was obtained and how the prosecution has classified it.

This material is based on the academic publication: Petryk V.V. “The concept and legal nature of electronic evidence in the criminal procedure of Ukraine” // Proceedings of the IX International Scientific and Practical Conference, 2025. Read the original article.

Do you have questions about electronic evidence in your case? Contact us – we will arrange a free initial consultation.

Also in the electronic evidence series

• Electronic evidence in criminal proceedings: what you need to know
• Types of electronic evidence: classification and international experience
• Features of electronic evidence in criminal cases: Ukrainian and global experience
• Electronic evidence in Ukrainian and foreign courts: what we can borrow
• Artificial intelligence and electronic evidence: new challenges for Ukrainian courts