DIGITAL EVIDENCE IN CRIMINAL PROCEEDINGS: THE CONCEPT, RELATIONSHIP WITH RELATED CATEGORIES, AND PROSPECTS FOR LEGAL CODIFICATION

Abstract

This article examines the category of ‘digital evidence’ within the context of criminal proceedings. The relevance of the topic stems from the rapid digitalisation of social relations and the shift of criminal activity into the digital environment, which necessitates a comprehensive approach to the use of digital evidence in criminal proceedings. The author’s aim is to formulate an original definition of “digital evidence” and to distinguish it from the related categories of “electronic evidence” and “virtual trace”.

The methodological basis of the study consists of comparative-legal and terminological methods of analysis. The article examines the current criminal procedure legislation of Kazakhstan, Ukraine, Kyrgyzstan and Türkiye, as well as the provisions of the Digital Codes of Kazakhstan and Kyrgyzstan, which define the concepts of ‘digital data’ and ‘digital record’. Particular attention is paid to international experience – the legislation of China and the Philippines, as well as the provisions of the Budapest Convention on Cybercrime. It is established that none of the countries examined formally enshrines the term ‘digital evidence’ in criminal legislation: related categories are used instead – ‘electronic evidence’ (Ukraine, in civil and administrative proceedings), ‘electronic data’ (China), or an open-ended list of evidence without further detail (Türkiye).

The author proposes an original definition of digital evidence that takes into account its immaterial nature, its suitability for automated processing, and the procedural manner of its acquisition. Four alternative legislative solutions are set out for national legal systems – ranging from avoiding detailed regulation to introducing digital evidence as an independent category of evidence. The findings may be used to improve criminal procedure legislation and in further research on the digitalisation of evidence law.