Digitalización del proceso penal: ¿la simplificación siempre es para mejor?
| Autor | Oleksandr Halagan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka |
| Cargo | Candidato de Ciencias Jurídicas, profesor asociado y profesor del Departamento de Procedimiento Penal de la Academia Nacional de Asuntos Internos/Candidata de Ciencias Jurídicas y profesora principal del Departamento de Procedimiento Penal de la Universidad Nacional de Derecho Yaroslav Mudryi/Candidata de Ciencias Jurídicas y profesora adjunta... |
| Páginas | 1-12 |
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IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
ARTICLE
Digitalization of the criminal process:
is simplication always for the better?
Oleksandr Halahan
National Academy of Internal Affairs
Iryna Krytska
Yaroslav Mudryi National Law University
Anush Tumanyants
Yaroslav Mudryi National Law University
Iryna Dubivka
National Academy of Internal Affairs
Date of submission: November 2022
Accepted in: February 2023
Published in: October 2023
Abstract
Based on monitoring of current foreign criminal procedural legislation and its application, as well as
scientists’ points of view, an analysis of the process of digitalization of criminal justice in some leading
countries, in particular Ukraine, was carried out. The positive aspects of the systematic transfer of pro-
ceedings to digital mode were highlighted – optimization of pre-trial investigation and trial procedures,
saving budget funds, reducing the number of authorized entities involved in certain procedural actions,
applying effective methods of electronic communication, and so on. Risks include a lack of proper tech-
nological support and the threat of cyberattacks, intensification of abuse and falsification of evidence.
Prospects for the development of digitalization have been determined in terms of interaction with elec-
tronic registers, the simplification of application transfer, petitions and complaints directly through the
system of electronic cases and so on. Arguments are given on the expediency of applying an integrated
approach to the implementation of the concept of electronic judicial proceedings, in particular the use of
electronic document management and access to court cases in electronic form, the use of modern digital
technologies in the implementation of procedural actions, and ensuring the proper recording of the trial
by videoconference. It is emphasized that the basis of such digital innovations in the field of criminal jus-
tice should be the principle of humanism, that is, with human rights and legitimate interests as a priority.
Keywords
digitalization of criminal proceedings; information and communication technologies; pre-trial investi-
gation; trial; digital evidence; respect for individual rights
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Digitalization of the criminal process: is simplification always for the better?
IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
Digitalización del proceso penal: ¿la simplicación siempre es
para mejor?
Resumen
Basándose en la supervisión de la legislación procesal penal extranjera vigente y la práctica de su
aplicación, así como en los puntos de vista de los científicos, se llevó a cabo un análisis del proceso de
digitalización de la justicia penal en algunos países líderes, en particular en Ucrania. Se destacaron los
aspectos positivos de la transferencia sistemática de procedimientos al modo electrónico: optimización
de los procedimientos de instrucción previa y judiciales, ahorro de fondos presupuestarios, reduc-
ción del número de entidades autorizadas que intervienen en determinadas actuaciones procesales,
aplicación de métodos eficaces de comunicación electrónica. Los riesgos incluyen la falta del apoyo
tecnológico adecuado y la amenaza de ciberataques, la intensificación de los abusos y la falsificación
de pruebas. Se han determinado las perspectivas para el desarrollo de la digitalización en términos
de interacción con los registros electrónicos, simplificación de la transferencia de solicitudes, peticio-
nes, quejas directamente a través del sistema de expedientes electrónicos, etc. Se argumenta sobre
la conveniencia de aplicar un enfoque integrado a la implementación del concepto de procedimientos
judiciales electrónicos, en particular, el uso de la gestión electrónica de documentos y el acceso a casos
judiciales en formato electrónico, el uso de las tecnologías digitales modernas en la implementación de
actuaciones procesales, garantizando la correcta grabación del juicio por videoconferencia. Se enfatiza
que tales innovaciones digitales en el ámbito de la justicia penal deben basarse en el principio del
humanismo, es decir, la prioridad de los derechos humanos y los intereses legítimos.
Palabras clave
digitalización de procesos penales; tecnologías de la información y la comunicación; instrucción previa;
juicio; prueba digital; cumplimiento de derechos individuales
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Digitalization of the criminal process: is simplification always for the better?
IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
Introduction
Modern criminal procedural activity is closely related
to the information and technical conditions in which it
is implemented. The rapid development of information
technologies and the digitalization of social, legal and
economic relations cause current legal norms and prac-
tical activities to become outdated. As a result of such a
“procedural inhibition”, the fulfilment of the tasks of crim-
inal proceedings is significantly delayed and in some cases
rendered completely impossible. In the modern world, the
regulatory framework on the basis of which crimes are
investigated and prosecuted should be more flexible and
at least partially keep pace with the development of other
processes (Mykhaylenko, 2022).
For more than 10 years, Ukraine has been living under the
new rules of criminal proceedings, and this new paradigm
is undergoing constant transformation. During this peri-
od, over one hundred changes and additions were made to
the Criminal Procedure Code of Ukraine, and their content
is dictated by the inability to provide at the stage of leg-
islative work a model for the use of criminal procedural
prescriptions and changes in objective reality (pandemic,
war, and so on). The dynamics of such transformations
of the criminal procedural legislation do not always keep
pace with the modern needs of criminal justice.
We must state that certain institutions of the criminal pro-
cess require modernization, such as the following issues:
the beginning of a pre-trial investigation, documentation
and use of information from the content of electronic in-
formation systems and communication systems, the use
of digital technologies for procedural actions during the
trial, and so on.
Thus, the issue of introducing the concept of electron-
ic criminal proceedings into the practical activities of
pre-trial investigation bodies and criminal justice does not
lose its relevance, and the gradual digitalization of their
activities is a necessary condition for creating an effective
mechanism for the legal regulation of criminal procedural
relations in which public and private interests intersect.
To this end, we will carry out a general description of the
best practices for introducing information and communi-
cation technologies into the modern criminal process and
explore the problematic issues of applying the provisions
of criminal procedural legislation during the legal regime
of martial law. Such an approach to highlighting the prob-
lem of the digitalization of the criminal process will make
it possible to determine the perspectives of the legislative
regulation of certain procedures and enforcement at a
national level.
1. General characteristics of best
practices for the introduction of
information and communication
technologies in the modern
criminal process
The gradual transition of criminal proceedings to elec-
tronic proceedings is associated both with the progress
of information and communication technologies and
with modern requirements to accelerate the exchange
of information, improve the state of observance of hu-
man rights and freedoms, and undertake comprehensive
analysis of information in decision-making. It is natural
that the fulfilment of the tasks of criminal proceedings in
modern conditions cannot be ensured without effective
consideration of the European and international experi-
ence of criminal justice.
The trend of introducing information and communication
technologies into the world and the development of mod-
ern electronic society require the introduction and further
development of digitalization of criminal proceedings in
many democratic countries, which requires a detailed and
systematic analysis of current legislation and clarification
of the algorithm of electronic criminal proceedings.
In the Strategy for the Development of the Justice Sys-
tem and Constitutional Justice for 2021-2023, clause
4.1.4. indicates the need for “the introduction of modern
electronic clerical work in court, electronic case man-
agement, electronic communications with the court,
the judge’s office and the office of the participant in the
process” (Strategy for the Development of the Justice
System and Constitutional Justice for 2021-2023). At
the same time, the issue of adopting the Unified State
Concept for the Introduction of Electronic Criminal
Justice in Ukraine is still open and requires immediate
scientific elaboration and legislative solution. A similar
problem exists in many other countries, so the analysis
of these issues will be useful for developing appropri-
ate proposals to optimize the digitalization process in
criminal justice.
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IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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of this edition: 2023, Universitat Oberta de Catalunya
Generally speaking, one leader in the field of application
of video technologies in legal proceedings is France. It
created Contact Video Justice (justice through a video
system) – administrative virtual racks with Internet access,
allowing citizens to make a request, receive and sign doc-
uments, and talk to a lawyer using a webcam. In turn, Po-
land adopted a somewhat more modest approach to this
issue and in 2009 created an electronic court to consider
court decisions and speed up the process of consideration
of claims for debt collection (Stach, 2020).
Quite creative and at the same time effective are indi-
vidual initiatives of electronic proceedings introduced by
other countries. In particular, the Estonian CPC provides
for the implementation of the trial in electronic digital for-
mat and the transfer of petitions, applications, complaints
directly through the electronic case system (Kalancha,
2019). The criminal proceedings of the Republic of Mol-
dova propose for consideration such recommendations as
the ad hoc procedure, which provides for the appointment
of a forensic expert in the specialization necessary for the
examination and the possibility of publishing during the
trial the video testimony of a minor witness so as not to
involve him or her again (Kalancha, 2020).
In modern realities, improving the information support
of pre-trial investigation plays an important role, since
it is aimed at simplifying and accelerating the process of
disclosing the circumstances of criminal offences (Kova-
lev, 2022). On these issues, it is worth noting the positive
experience of electronic interaction successfully imple-
mented in the Czech Republic between pre-trial investiga-
tion bodies and other subjects of the process. A striking
example to follow is the electronic system of the Czech
Republic E-Case Management System (eCMS), which be-
gan to function in 2006 in the police. Its specificity lies
in the material support of law enforcement agencies with
gadgets connected to the eCMS, which allow you to check
persons, vehicles, register proceedings, take fingerprints,
and so on. The main advantage of such a system is the
ability to record the conducted search actions and gain
access to all electronic documents. It is this system that
has been taken as a basis in Ukraine (Zhuchenko, 2021).
It should be noted that each of the European countries
introduced digital technologies as needed and in areas
where they were required. This has meant differences in
the levels of development of e-justice and methods of its
implementation. Of course, some digital transformation
processes are common in European countries, such as
the creation of electronic registers and databases, the
wider use of electronic documents and digital signa-
tures, online consultations, and, since the beginning of
quarantine measures, the consideration of cases in video
conferencing. However, the implementation of relevant
technologies depends on a country’s chosen policy re-
garding e-justice.
In particular, the following information and communication
technologies can be distinguished in the judicial system:
a back office that supports processes related to the ad-
ministration of cases, the production of documents and
court management, the processing of texts and databases,
technologies that make it possible to perceive what is hap-
pening in the courtroom itself, and external communication
technologies that ensure communication with the parties
and inform the public outside the courts. The essence of
these different technologies is the same: to reduce the func-
tions of a judge in a judicial process to making a decision,
taking into account all circumstances. All preparatory and
organizational work is a function of technology. Therefore,
there is no doubt that the e-court system has long been a
necessity that greatly simplifies access to justice.
Positive foreign experience in the introduction and im-
plementation of the electronic digital form of criminal
cases only confirms the expediency of further modern-
ization of criminal procedure. Among such provisions,
those that merit attention include interaction with
electronic registers, transfer of petitions, applications,
complaints directly through the system of electronic
cases, and the implementation of trials in electronic
digital format.
We believe that certain technological solutions can be
used not only by Ukraine, but also by other countries
with similar criminal justice structures. These particularly
include automatic notification to the relevant electronic
information platform of authorized and other interested
persons about the start of pre-trial investigation, the
automation of electronic interaction between the inves-
tigator and the prosecutor, the formation of templates of
electronic procedural documents in the register, the full
integration of paper criminal proceedings into electronic
proceedings on the basis of this system; introduction of
interaction of pre-trial investigation bodies with other
subjects of criminal proceedings by analogy with the data
box, and the creation of a special electronic system that
will interact with state registers and databases necessary
for criminal proceedings.
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IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
Thus, there is no doubt that technological solutions in the
administration of justice must be accountable, sustainable
and highly transparent. However, not all innovations should
be unquestioningly implemented, even if the technology
initially looks incredibly promising. At the same time, as
rightly noted in scientific literature, “both algorithms and
the law are tools for ordering and rationality. This com-
monality of their nature gives hope that the union of law
and algorithms can be a successful foundation for fairness
and justice” (Cofone, 2019).
Most promising is the potential for procedural fairness
when using algorithms, since they can contain indestructi-
ble sequences that preclude arbitrary violation of the
procedure. With the proper provision of proper content,
security and laissez-faire, algorithmic tools can contribute
to a more equitable administration of justice.
2. Digitalization of certain
procedures during the pre-trial
investigation in Ukraine
Electronic criminal proceedings can be defined as a
regime of criminal procedural activity based on compo-
sitional algorithms of automated criminal procedural
procedures and electronic information systems integrated
with it. Such proceedings are implemented by the subjects
in electronic format and recorded in the official electronic
procedural document.
Introduced in 2012 into the work of Ukrainian law enforce-
ment agencies, the Unified Register of Pre-Trial Investi-
gations (hereinafter referred to as the URPTI) is an au-
tomated electronic database system, according to which
the collection, storage, protection, accounting, search,
synthesis of data used for reporting, as well as providing
information on information entered in the Register, in
compliance with the requirements of criminal procedural
legislation and legislation, which regulates the protection
of personal data and access to information with limited
access (Criminal Procedure Code of Ukraine, 2012).
The materials of the pre-trial investigation contained in
the information and telecommunication system of pre-tri-
1. Part 3 of Article 106-1 of the Criminal Procedure Code of Ukraine (2012).
al investigation are transferred, their copies are provided
in electronic form, and by decision of the investigator,
prosecutor, investigating magistrate, they are transferred
or provided in paper form.
1
Over the past ten years, this
mechanism has proven effective and laid the foundations
for further digitalization of criminal proceedings.
The introduction of a single integrated electronic system
of criminal justice bodies, combined with national elec-
tronic registers and databases, aims to transfer to the
electronic information environment measures to ensure
criminal proceedings, investigative (inquiry) actions,
accumulation, systematization, transfer and research of
evidence, as well as adoption by specialized subjects of
pre-trial investigations of procedural decisions in elec-
tronic format, ensuring compliance with reasonable dead-
lines (Bevzyuk, 2019).
At the same time, despite significant changes in the direc-
tion of digitalization of the criminal process, it is neces-
sary to state the lack of proper technological support and
cybersecurity, which creates obstacles in the development
of electronic document management. In the process of
solving these issues, the key task should be to determine
the systematic and moderate use of digital systems.
Given that Ukraine is a “pioneer” in the use of certain infor-
mation and communication technologies precisely in condi-
tions of hostilities, which led to the introduction of a special
legal regime on its territory, it has experience in legislatively
normalizing certain procedures, conducting investigations
and trials relevant in terms of the subject of research.
After the introduction of martial law in Ukraine on
24.02.2022 (Decree of the President of Ukraine, no. 64,
2022) in the content of Art. 615 of the Criminal Procedure
Code of Ukraine, there was a provision that during martial
law, in the absence of technical possibility of access to
the Unified State Register, the decision to start a pre-trial
investigation is made by the investigator or prosecutor:
information to be entered into the Unified State Register
is entered at the earliest opportunity (Criminal Procedure
Code of Ukraine, 2012).
We consider such changes in the legal regulation of the
decision to start a pre-trial investigation under martial
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of this edition: 2023, Universitat Oberta de Catalunya
law to be positive, since during hostilities the URPTI may
function intermittently or not at all. The key condition for
the implementation of this procedure is considered by the
legislator to be the lack of technical access to the specified
Register, which may be associated with the following cir-
cumstances: the exit of computer or network equipment
from service, power and communication interruptions, the
Internet, lack of access to the same, problems with trans-
port, blocking and seizure of administrative buildings, lack
of access to territories, which may lead to the inability to
enter information for a long time to Registry.
Under such conditions, it seems a predictable and logical
resolution as a whole to record the decision to start a
pre-trial investigation with a paper document. However,
we consider this method of legal regulation imperfect,
since the analysed provisions of the Criminal Procedure
Code of Ukraine may adversely affect the effectiveness of
criminal proceedings at the initial stage of the investiga-
tion due to the physical inability to draw up a resolution
at the start of a pre-trial investigation or enter relevant
information into the Register. In this regard, the author-
ized subjects of the criminal process will be significantly
limited in the exercise of their powers. At the same time,
it is possible to predict quite significant difficulties for the
defence party, because it is possible to prove the justifica-
tion for the application by the investigator or prosecutor
of the provisions of paragraph 1 of part 1 of Art. 615 of the
Criminal Procedure Code of Ukraine. It can be extremely
difficult to determine whether they had the opportunity to
enter information into the Unified State Register, either at
all or when it appeared in an armed conflict.
Also, with a fresh wave of cyberattacks during the war peri-
od, to ensure the quick and effective investigation of crimes
related to the military aggression of the Russian Federation
against Ukraine, on 15.03.2022 the Verkhovna Rada of
Ukraine adopted Law No. 2137-IX, aimed at increasing the
effectiveness of pre-trial investigation “in hot pursuit” and
at countering cyberattacks (Law of Ukraine No. 2137-IX,
2022). The amendments made to the CPC of Ukraine will
be valid both during the special legal regime of martial law
and after its completion. Below, we consider some of the
innovations that relate to the subject of our research.
Particular attention should be paid to the interpretation by
national judicial systems of the concept of “electronic evi-
dence” and the procedures for its receipt and evaluation.
Indeed, as the doctrine rightly points out, the field of digital
evidence is expanding rapidly and it offers an important
new source of information that will help prosecutors secure
more sentences (Goodison et al., 2015). Taking into account
foreign experience, as well as the settlement of these
aspects in other procedural laws, there is an urgent need
to determine the place of digital evidence in the system of
procedural sources of evidence, followed by regulation of
new approaches to their collection, research and evalua-
tion, based on the peculiarities of their technical nature and
the need for their authentication and verification.
In practice, computer equipment or storage devices and
secret surveillance are increasingly being seized (Bujosa
Vadell et al., 2021). From now on, according to the legis-
lation of Ukraine, copies of computer data produced by
the investigator or prosecutor with the involved specialist
are recognized by the court as the original document: an
independent source of evidence in accordance with Part 2
of Art. 99 CPC of Ukraine. At the same time, information
on the manufacture of a copy and the method of their
identification must be entered into the protocol drawn
up as a result of the procedural action. A computer data
carrier is attached to the protocol.
According to the documents, provided that they contain
relevant information, materials of photography, sound re-
cording, video recording and other storage media (includ-
ing computer data) may belong. However, under the cur-
rent legislation, the investigator or prosecutor is obliged
to invite at least two uninterested persons (understood)
to present a person, corpse or thing for identification or
examination of a corpse, including those related to exhu-
mation, investigative experiments, and identification of a
person. Exceptions include cases of continuous video re-
cording of the course of the relevant investigative action.
In our opinion, such a procedure is able to ensure the
legitimacy of the investigative action, the use of technical
means for its fixation and the admissibility of the results
of its conduct in criminal proceedings. At the same time,
it should be understood that the use of technical means
of recording criminal proceedings in no way replaces the
protocol of the relevant procedural action, but only com-
plements it, ensuring clarity and objectivity regarding the
activity of the subject of the investigation.
The legislative approach of other countries to the un-
derstanding of electronic evidence and its assessment
is somewhat different from that of Ukraine. In particular,
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IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
in the United States of America there is no division of
evidence into species. Evidence is evaluated in terms of
its admissibility. It transpires that it is for this reason that
there is no discussion regarding the possibility of the exist-
ence of “digital evidence” and its place in the evidence in
criminal cases. Although US lawmakers do not distinguish
between “electronic” evidence and conventional evidence,
they still note its specificity. A number of requirements
are made of the evidence in criminal proceedings in said
country, one of which is reliability. The production of digi-
tal evidence in criminal investigations indicates a tenden-
cy to refuse to fully recognize a computer business record
due to the complex differences between records created
by a computer, records created by people but stored on
a computer, and records that have been digitized and
then saved as an archived log file (Jarett et al., 2009).
This rule determines the complexity, uncertainty and, ul-
timately, the admission of evidence in many cases. Digital
information for proof must be authenticated, meaning it
must be confirmed that this is the same information that
was obtained from a particular medium. For all evidence
to be admitted, it is necessary to establish a framework
for authenticity, which in many cases requires witnesses
to certify the authenticity of digital information.
Canadian law establishes not only rules for evaluating
evidence in general, but also additional criteria for the
admissibility of electronic documents. Article 31.1 of the
Canadian Evidence Act requires the authentication of
electronic documents, provided that their authenticity
can be confirmed by the integrity of the system of record-
ing and storing electronic documents (Article 31.3) or by
cross-examination under oath (Article 31.5). The burden of
proving the authenticity of an electronic document rests
with the person who provides it as evidence (Article. 31.3)
(Canada Evidence Act, 1985).
One of the features of the proof procedure in the French
criminal process is the freedom to choose the method of
obtaining evidence. At the same time, the inquiry body
has the right to perform any actions to establish the cir-
cumstances of the crime committed. Such specificity, in
our opinion, is due to the presence of “free evidence”: not
bound by the procedural form and not regulated by law. As
evidence in a criminal case, not only can the original dig-
2. Part 5 of Article 56, part 3 of Article 97 of the Code of Criminal Procedure (2006).
ital information seized together with its carrier be used,
but also a copy of said information.
2
Analysis revealed a number of impediments to the intro-
duction of digital technologies in criminal proceedings, in-
cluding in terms of evidence, which exist in both Ukrainian
and foreign legislation and in law enforcement practice.
These reasons are largely explained by the traditional atti-
tude to the criteria of evidence in criminal proceedings of
different countries, but the common problem is the lack of
a unified theory of digital evidence as the basis for the de-
velopment of legal terminology and the procedural proce-
dure for interpreting digital evidence. In our opinion, such
a theory would unify the rules for obtaining and further
using digital evidence, linking digital technologies with
the principles of criminal justice. Practical support for this
theory should involve the training of qualified specialists,
including the improvement of digital skills of investigators
(detectives), prosecutors and judges.
Also, as you know, all procedural decisions of the investiga-
tor or prosecutor must be made in the form of a resolution.
In order to provide proper execution of decisions of law en-
forcement agencies, Ukrainian legislation has established
the possibility of producing a resolution in electronic form.
At the same time, the electronic signature of the official
who made the relevant procedural decision or the Infor-
mation and Telecommunication System of pre-trial inves-
tigation is qualified. Given the huge volume of war crimes
that currently require quick and effective investigation, we
consider such changes to be justified and appropriate.
In general, the legislative provisions described in the sub-
section, which are related to the settlement of criminal
procedural legal relations, as well as the normalization
of certain procedures for obtaining and using evidence
using modern technologies, will simultaneously simplify
and speed up pre-trial investigation in certain criminal
proceedings, without affecting its quality and without
limiting the legal rights and interests of the subjects
of criminal procedure. At the same time, it should be
remembered that by introducing such innovations in fa-
vour of the public good, under no circumstances should
violations of the legal rights and interests of individuals
be allowed.
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2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
A complete transition of criminal proceedings from paper
to electronic is inevitable in the future, but both during
the transition process and in the future, the accused must
have the choice of the optimal manner of contact with the
law enforcement officer. Their opinion on this issue should
be taken into account as much as possible, because the
fate of the accused is decided during criminal proceed-
ings. In order to properly ensure the right to protection
and access to justice, the accused should be given the
right by law to choose the form of criminal proceedings
with which they prefer to work, familiarize themselves
with the documents, receive copies, and file complaints
in the traditional way (on paper) or through electronic
document circulation.
Concluding this part of the study, the prospect of further
research into these issues should be emphasized, given
the need to analyse the positive foreign practice of ad-
ministrative and legal regulation of the functioning of the
information and telecommunication system of pre-trial
investigation and determine the possibility and expedien-
cy of borrowing it in order to implement it into national
legislation and practical application.
3. Organizational, technical and
procedural features of the
peculiarities of the establishment
of electronic legal proceedings
under special legal regimes
In courts, the functioning of electronic records manage-
ment is ensured by the existence of the Unified Judicial
Information and Telecommunication System (hereinafter
referred to as the UJITS), which stipulates the transfer
of criminal proceedings to the e-format, in particular in
accordance with the requirements of the legislation of
17.08.2021. The High Council of Justice approved the Reg-
ulation on the procedure for the functioning of individual
subsystems (modules) UJITS, which, among other things,
determines the procedure for functioning in courts and in
justice bodies of individual modules. “Electronic Cabinet”,
“Electronic Court”, and the functioning of videoconfer-
encing as a separate subsystem determine the procedure
for performing procedural actions in electronic form using
the specified UJITS subsystems (Regulations on the pro-
cedure for the functioning of individual subsystems).
Given the expediency of implementing the concept of
electronic judicial proceedings, it is important to recog-
nize that the subsystem “Electronic Court” allows for the
submission of court documents in electronic form to the
participants of the trial, as well as sending procedural
documents to such participants in electronic form in
parallel with documents in paper form in accordance with
procedural legislation. The aforementioned testifies to the
existence of legal principles for introducing the concept of
electronic criminal proceedings into legal practice.
However, it should be emphasized that the introduction
of remote work of courts under martial law requires the
most efficient use of electronic document management
and access to court cases in electronic form. The ESITS
provided for by the procedural legislation should ensure
the exchange of documents in electronic form between
the courts, between the court and participants in the trial,
and between participants in the trial, as well as the record-
ing of the trial and the participation of participants in the
trial in the court session by videoconference.
An important guarantee of legal, fair and effective justice
is the objective and impartial distribution of criminal pro-
ceedings materials among judges in compliance with the
principles of priority and the same number of proceedings
for each judge (uniform load) (On the judiciary and the
status of judges. Law of Ukraine, 2022). At the same time,
under martial law, situations may arise: the exit of network
equipment from service, interruptions in electricity and
communication, the Internet, and so on, which make it
impossible to access UJITS and can thus “paralyse” the
work of courts. Thus, the head of the relevant court, whose
powers include monitoring the effectiveness of the court
apparatus, organizing the maintenance of judicial statistics
in the court and information and analytical support of judg-
es in order to improve the quality of judicial proceedings,
and so on (Articles 24, 29, 34, 39, 42 of the Law of Ukraine
“On the Judiciary and the Status of Judges”) should ensure
the distribution of materials of criminal proceedings among
judges in compliance with the relevant principles (On the
judiciary and the status of judges. Law of Ukraine, 2022).
In the future, assessing the advantages and disadvantages
of introducing information and communication technologies
into the criminal process, it is certainly advisable to focus on
such important positive manifestations as the preservation
of time, human and material resources, the release of peo-
ple from excessively monotonous, typical work in favour of
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Digitalization of the criminal process: is simplification always for the better?
IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
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of this edition: 2023, Universitat Oberta de Catalunya
increasing attention to creative tasks, the justification of key
procedural decisions that require evaluation by internal con-
viction, and so on. On the other hand, shortcomings or risks
involved in the introduction of information and communica-
tion technologies include problems associated with possible
bias and discrimination arising from the basic algorithms of
artificial intelligence technologies.
In this context, attention should be paid to certain legal
guidelines already established in this regard. In particular,
key standards for the introduction of artificial intelligence
into the judicial system, including criminal intelligence, are
defined in the European Charter on the Ethics of the Use of
Artificial Intelligence in Judicial Systems and the realities
around them, adopted on December 3-4, 2018 in Stras-
bourg by the European Commission on the Effectiveness
of Justice (European Ethical Charter on the Use of Artificial
Intelligence in Judicial Systems and the Realities Surround-
ing Them, 2018). Analysis of this document highlighted the
basic principles of the use of artificial intelligence technol-
ogies in justice, namely: respect for fundamental human
rights, inadmissibility of discrimination, quality and safety,
implementations “under the control of the user”, openness,
impartiality, and transparency (European Ethical Charter
on the Use of Artificial Intelligence in Judicial Systems and
the Realities Surrounding Them, 2018).
In general, we can state that despite a number of risks
and miscalculations that need to be regulated by law and
worked out in practice, the very concept of judicial reform
in the direction of its digitalization is progressive and
relevant. After all, the issue of introducing remote forms
of court work, switching to an electronic form of judicial
proceedings, and accessing the electronic office of a judge
is extremely important, and the war has only actualized
these issues. On the one hand, relevant amendments
to the legislation are necessary to preserve the life and
health of the participants in the trial and will form the ba-
sis for making timely decisions on the evacuation of court
employees, and on the other hand, they will contribute to
compliance with international standards for compliance
with the requirements of the Constitution of Ukraine on
the administration of justice under martial law.
Conclusions
Despite significant changes in the digitalization of the
criminal process in many European countries, the adop-
tion of the Unified State Concept for the Introduction of
Electronic Criminal Justice is relevant for many modern
democracies. It requires a systematic and moderate ap-
proach, proper technological support and cybersecurity,
and the creation of conditions to prevent discrimination,
abuse and falsification of evidence. Positive aspects of
digitalization include the optimization of the procedures
of pre-trial investigation and trial, preservation of budget
funds, reduction in the number of authorized entities
involved in certain procedural actions, application of ef-
fective methods of electronic communication, and others.
The implications of technological changes for criminal justice
must be assessed in terms of the balance of threats and op-
portunities offered by new technologies: security breaches,
privacy violations, and structural erosion of privacy. A signif-
icant level of threat is also hidden and implicit. This involves,
above all, manipulative influences on the judiciary and specif-
ic processes and the invisible undermining of the rule of law
and human rights, including their authority and values.
Analysis of criminal procedural norms and theoretical ideas
about the modernization and digitalization of the criminal
process during the special legal regime (in the example of
martial law introduced in Ukraine) testifies to certain con-
ceptual legislative shortcomings in terms of the normaliza-
tion in the code of paper-technical form of fixing criminal
procedural actions with a significant simplification of the
procedure for drawing up written documents and the de-
termination of the obligation of continuous video recording
of the relevant investigative actions without concepts. Fur-
ther prospects in this regard are seen in the digitalization
of interaction with electronic registers, simplification of
the transfer of applications, petitions, complaints directly
through the system of electronic cases, and others.
The introduction of the concept of electronic judicial pro-
ceedings under the conditions of special legal regimes,
the main idea of which is to transfer courts to the format
of remote work, is undoubtedly creative and simultane-
ously the most divine way to implement the function of
justice, which requires a comprehensive, efficient use of
electronic document management and access to court
cases in electronic form, and the use of modern digital
technologies in the implementation of procedural actions,
ensuring proper recording trial by videoconference. The
basis of such digital innovations in the field of criminal
justice should be the principle of humanism: that is, the
priority of human rights and legitimate interests.
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Digitalization of the criminal process: is simplification always for the better?
IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
10
2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
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Recommended citation
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process: is simplification always for the better?”. IDP. Journal promoted by the Department of Law and Political Science,
no. 38. UOC [Accessed: dd/mm/yy]http://dx.doi.org/10.7238/idp.v0i38.408495
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About the authors
Oleksandr Halahan
National Academy of Internal Affairs
law54@ukr.net
ORCID: http://orcid.org/0000-0001-5105-0022
Candidate of legal sciences, Associate Professor, Professor at the Department of Criminal Procedure at National Academy
of Internal Affairs. His subject of scientific research is the institution of motions in the criminal process as a guarantee to
ensure the rights of persons involved in the field of criminal justice. Actively participates in the development of proposals
related to the digitalization of legal relations of participants in criminal proceedings at the stage of pre-trial investigation.
Iryna Krytska
Yaroslav Mudryi National Law University
i.o.krytska@nlu.edu.ua
ORCID: http://orcid.org/0000-0003-3676-4582
Candidate of legal sciences, Senior Lecturer of Department of Criminal Procedure at Yaroslav Mudryi National Law Uni-
versity. Her main areas of research include ensuring the legality of evidentiary activities of the prosecution in criminal
proceedings, theoretical and practical aspects of ensuring the legality of the formation of physical evidence in criminal
proceedings, and digitization of the criminal process. She has formulated scientifically based proposals aimed at improving
the current criminal procedural legislation.
Anush Tumanyants
Yaroslav Mudryi National Law University
anushjurist@gmail.com
ORCID: http://orcid.org/0000-0001-6403-8436
Candidate of legal sciences, Associate Professor at the Department of Criminal Procedure, Yaroslav Mudryi National
Law University. The object of scientific research is the study of procedural features of ensuring the rights and legitimate
https://idp.uoc.edu
Universitat Oberta de Catalunya
Digitalization of the criminal process: is simplification always for the better?
IDP N.º 38 (October, 2023) I ISSN 1699-8154 Journal promoted by the Law and Political Science Department
12
2023, Oleksandr Halahan, Iryna Krytska, Anush Tumanyants, Iryna Dubivka
of this edition: 2023, Universitat Oberta de Catalunya
interests of a person during investigative actions. Special attention in recent work has focused on the analysis of the
international legal experience of ensuring the principle of inviolability of a person’s home or other property, in particular
with the use of modern technologies.
Iryna Dubivka
National Academy of Internal Affairs (Ukraine)
irinadubivka@ukr.net
ORCID: http://orcid.org/0000-0002-7189-3630
Candidate of legal sciences, Associate Professor at the Department of Criminal Procedure at the National Academy of
Internal Affairs. She has both theoretical achievements in the field of criminal proceedings, in particular regarding the
problems of a lawyer’s activity at the stage of pretrial investigation, taking into account the current state of legislation
and law enforcement practice, as well as practical achievements, having worked for several years in the investigative units
of the National Police. Recently, she has actively engaged in researching the problems of improving criminal procedural
activities in the languages of special legal regimes.
