Electronic Evidence in Criminal Matters: How About E-Evidence Instruments 2.0?

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... O. Predmestnikov et al. (2023) expressed concern that Ukraine, having been at war for more than a year, does not use all available means of the protection, including non-ratification of the Rome Statute of the International Criminal Court, which makes it difficult to implement some of the decisions of this international body. S. Depauw (2018) analysed the role of digital evidence in criminal cases in European Union countries, drawing attention to the collection of electronic evidence, in particular content data, for criminal justice in Europe. K. Latysh (2022) investigated the use of digital forensics during the war. ...
The electronic evidence has become one of the key components of criminal investigations. The use of digital evidence allows investigating not only criminal offences against the property, environment, etc., but also offences committed during the war and invasion. Since the beginning of the large-scale invasion of Ukraine, the number of pillage cases, which became known from open sources of information, has increased. The purpose of this study was to investigate the problematic issues of using digital evidence in the pillage investigation. The methodological basis was general scientific methods of cognition, namely, scientific abstraction, deduction and induction, extrapolation, and logical generalisation. The paper examines pillage among other war crimes in the context of determining the concept, composition of a crime, and the admissibility of digital evidence during the pillage investigation of this crime. The urgency of solving problematic aspects related to the pillage investigation, primarily in the context of a full-scale war in Ukraine, is substantiated. The pillage is separated from other crimes against property committed under martial law or a state of emergency. The problems of terminology are considered and approaches to the qualification of criminal offences committed under martial law, including shortcomings in law-making, are outlined. It is proposed to amend the Criminal Procedure Code of Ukraine, defining the requirements for electronic evidence during the investigation of pillage. The practical significance of the study lies in the fact that such tools can be used for further research on the use of the digital evidence as a means of proof in the pillage investigation, as part of the development and improvement of legislation in this area
This article examines the compromise proposal for a Regulation on cross-border access to electronic information in criminal matters the European Parliament Committee on Civil Liberties, Justice and Home Affairs voted in favour of in December 2020. It explores the origins of the e-evidence initiative as a whole by placing it in the context of the EU cooperation on counter-terrorism and digitalization strategy. On this basis, it presents the key elements of the compromise proposal with a focus on the envisaged function of the so-called European Production and Preservation Orders. To contribute to the ongoing debate on the suitability of that proposal compared to the one released by the Commission in April 2018, it argues that the LIBE Committee’s proposal fits better into a Union of Security and Freedom, but further improvements are needed to increase the protection of fundamental rights, given the intrusiveness of the suggested investigative measures.
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