On the propriety and admissibility of evidence, the subject of evidence and the use of electronic evidence

Judge of the Civil Court of Cassation as part of the Supreme Court, Natalia Sakara, gave a lecture for lawyers on the topic "Evidence and proof in civil proceedings under martial law in the practice of the Supreme Court."

The speaker noted that the issue of evidence is always relevant, regardless of the introduction of martial law in the country. At the same time, the introduction of such a state brings certain specificity to the procedure for presenting evidence, affects the applicable means of proof (in particular, electronic evidence is used more actively).

"The successful outcome of the case consideration in most cases depends on whether the circumstances included in the subject of proof are really proven with the help of evidence," said the judge. In judicial practice, she added, there are cases when the lawyer of one of the parties chose the right defense strategy, but due to lack of evidence, lack of evidence of circumstances testifying in his favor, loses the case.

Natalia Sakara reminded about the concept of evidence and their features, which was important for the discussion. Signs of evidence are that it:

  • factual data, that is, not the facts themselves, but information about them;
  • not any factual data, but only those that need to be established in this or that case;
  • actual data embodied in a certain procedural form (means of proof).

The judge noted that there is no explanation of the party, third person or representative in the list of means of proof. This is due to the fact that in order for the court to take such information into account, these persons must agree to be questioned as witnesses, and accordingly, their explanations are displayed in such a procedural form as witness statements and are considered evidence.

According to Articles 77–80 of the Civil Code of Ukraine, evidence must be proper, admissible, reliable, and sufficient.

As for propriety, the most difficult thing is to define the subject of proof. "The subject of proof is a fixed construction that has an objective character. The subject of proof is always determined by the norms of substantive law," said the speaker. She noted that when preparing a lawsuit or a response to a lawsuit, first of all, it is necessary to find the relevant norm (norms) of substantive law. Judicial practice, which specifies the subject of proof and defines the range of circumstances that need to be established, can be useful.

Nataliya Sakara noted that often, when addressing the court, representatives of the parties confuse the propriety of evidence with their admissibility. Regarding the propriety of the evidence, first of all, it is necessary to pay attention to the information that can be established with the help of the evidence, and check whether it is part of the subject of the evidence. If so, then regardless of the form in which such information is embodied, the proof is proper. If the information concerns other legal relationships, this is improper evidence.

In accordance with Part 3 of Art. 77 of the Civil Code of Ukraine, the parties have the right to justify the appropriateness of specific evidence to support their claims or objections. "The construction – 'have the right'" provides that the parties can submit evidence, considering it appropriate, but they are not obliged to justify their appropriateness in each specific case. If the opposite party denies the propriety of the evidence, the party that submitted it can justify its propriety," said Nataliya Sakara.

As an example, the judge cited several resolutions of the Supreme Court of the Supreme Court of Ukraine, which formed legal positions regarding the propriety of evidence. In one of the cases, it was concluded that the appropriate evidence confirming the fact that the personal property of an employee of a state institution is located on legal grounds is the relevant contract and the act of accepting and handing over things for safekeeping.

The speaker drew attention to the fact that the rule of admissibility of means of proof is formulated in the norms of civil procedural law – requirements for the form in which the information, which will be considered evidence in the future, is embodied. Admissibility can be considered in a broad sense and in a narrow sense.

In the first case, it is said that the requirement to obtain information must be observed only from the means of proof specified in the law and in accordance with the established procedure. In particular, in Part 1 of Art. 78 of the Civil Code of Ukraine provides that the court does not take into account evidence obtained in violation of the procedure established by law.

If we consider admissibility in a narrow sense, then we are talking about the use of only certain means of proof from among those provided by law (positive admissibility) or the impossibility of using certain means of evidence (negative admissibility). In particular, Part 2 of Art. 78 of the Civil Code of Ukraine stipulates that the circumstances of the case, which by law must be confirmed by certain means of proof, cannot be confirmed by others.

"As a scientist, I am very pleased that these rules of admissibility of means of proof are gradually beginning to be reproduced in the decisions of the Supreme Court," said Natalia Sakara and drew attention to the decision of the Grand Chamber of the Supreme Court of December 7, 2021 in case No. 905/902/20. It indicates that the admissibility of evidence has a general (in a broad sense) and a special (in a narrow) nature and explains what they consist of.

Regarding the admissibility of means of proof in a narrow aspect, attention should be paid to the norms of material law, since such norms often contain direct instructions, with the help of which evidence this or that circumstance can be confirmed. For example, Art. 220 of the Civil Code of Ukraine defines the conditions under which a contract, which must be concluded in a notarial form, can be recognized as concluded in court. "The legislator directs that the fact of reaching agreement on all essential terms of the contract must be confirmed with the help of written evidence. Or, for example, when it comes to a loan agreement, the norms of substantive law establish a direct prohibition to use the testimony of witnesses – this is a negative admissibility," said the speaker.

She also emphasized that the propriety of evidence is not the same as the admissibility of evidence. "Property of evidence refers to the attribution of the information embodied in the evidence to the subject of proof, and admissibility refers to the form in which this information is submitted to the court," Nataliya Sakara noted.

In addition, she spoke about the reliability and sufficiency of evidence, standards of proof, submission of evidence and demand for evidence by the court, the obligation to provide proof and the distribution of such an obligation, exemption from proof, etc. (see presentation ).

The judge raised the topic of electronic evidence, the use of which becomes important in wartime conditions. Such evidence received official status with the entry into force of the new procedural legislation on December 15, 2017. Until then, attempts were made to classify electronic evidence either as written or physical evidence.

Nataliya Sakara drew attention to the decision of the Commercial Court of Cassation as part of the Supreme Court of January 19, 2021 in case No. 922/51/20, which defines the possible forms of submission of electronic evidence.

One of the types of electronic evidence is an electronic document. Its definition is given in Art. 5 of the Law of Ukraine "On Electronic Documents and Electronic Document Management", and in Art. 7 of this Law specifies what an original electronic document is.

The speaker analyzed court practice regarding the use of electronic evidence. In particular, a number of decisions of the Supreme Court indicate that a printout of an electronic correspondence cannot be considered an electronic document (a copy of an electronic document), that is, it cannot be considered evidence because it does not contain an electronic signature. Another decision concluded that printouts of Internet pages (web pages) by themselves cannot be evidence in a case. They are recognized as evidence if they are produced, issued and certified by the owner of the relevant Internet resource or provider, that is, they acquire the status of written evidence.

Also, in several cases, the Supreme Court indicated that a video recording is one of the pieces of evidence, so the appellate courts had to evaluate such evidence.

Nataliya Sakara spoke about the decision of the Central Committee of the Supreme Court of July 13, 2020 in case No. 753/10840/19. In the case of the restraining order, the court took into account as evidence screenshots of messages from the phone and tablet and printouts from Viber with the husband's threats to his ex-wife.

Regarding the assessment of electronic evidence, the judge drew attention to the Supreme Court rulings, which concluded that it is not a violation of procedural law to not examine the original electronic evidence if there are paper copies of this evidence in the case file and in the absence of reasonable doubts about their correspondence to the original.

She also analyzed court practice regarding the demand for original electronic evidence.

The lecture was held as part of a webinar organized by the legal portal "Ratio Decidendi" and the magazine "Law of Ukraine".

Natalia Sakara's presentation – .

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