Electronic document evidence in court. Electronic documents as evidence in civil proceedings

UDC 347.9 No. 2 (13)/2017, p. 31-34

PROBLEMS OF APPLYING ELECTRONIC EVIDENCE IN CIVIL AND ARBITRATION PROCESSES

Daria Vladimirovna Sedelnikova

Russian State University Justice, Ural branch, Chelyabinsk, Russian Federation E-mail: [email protected]

Scientific director- Svetlana Aleksandrovna Burmistrova

Candidate of Legal Sciences, Associate Professor,

Russian State University of Justice, Ural Branch

The article is devoted to the problems of using electronic documents as evidence in civil and arbitration proceedings. The article examines the concept of an electronic document as evidence, revealing different opinions of various researchers regarding the legal nature of an electronic document. The problems of collecting and providing electronic information to the court, the problems of the absence in the legislation of the Russian Federation of specific criteria for the reliability of data contained in an electronic document are also considered. Ways to overcome this problem are revealed. Judicial practice on these issues is considered.

Key words: electronic document, evidence, legislation of the Russian Federation, written evidence, physical evidence, judicial practice, electronic digital signature, criteria for the admissibility of electronic evidence.

PROBLEMS OF APPLICATION OF THE ELECTRONIC EVIDENCE IN CIVIL AND ARBITRATION PROCEDURE

Darya Sedelnikova

Russian State University of Justice, Uralian branch, Chelyabinsk, Russian Federation

Email: [email protected]

Student advisor - Svetlana Burmistrova, Candidate of Law, Associate Professor,

Russian State University of Justice, Uralian branch

The article is devoted to problems of application of electronic documents as evidence in civil and arbitration procedures. In the article the concept of the electronic document as an evidence is considered, various opinions of different researchers on the legal nature of the electronic document are revealed. Also definite problems are considered: concerning collecting and providing electronic information in court and concerning the absence in the legislation of the Russian Federation of concrete criteria of reliability of the data which are contained in the electronic document. Ways of overcoming this problem are revealed. Court practice

on the named matters is considered.

Keywords: electronic document, evidence, legislation of the Russian Federation, written evidence, physical evidence, court practice, digital signature, criteria of admissibility of electronic evidence.

With the development of information technology in judicial practice The use of an electronic document as a means of evidence is becoming increasingly common. It is not given in law and science full definition an electronic document that would reflect all its essential and distinctive properties.

None of the current laws contains the concept of an electronic document as evidence and does not explain what features it must have in order for the court to recognize it as admissible evidence and attach it to the case materials.

The legal definition of an electronic document is contained in Article 2 of the Federal

No. 149-FZ dated July 27, 2006 “On information, information technology and on the protection of information”, an electronic document should be understood as documented information presented in electronic form, that is, in a form suitable for human perception using electronic computers, as well as for transmission over information and telecommunication networks or processing in information systems1. This definition does not contradict the position outlined in the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation.

Although there are some legislative provisions, there is no clear position as to which means of proof an electronic document should be considered. Based on the provisions of the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, it can be assumed that the legislator classifies electronic documents as written evidence.

The Internet based on the provisions of Part 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation can be considered under another method of obtaining written evidence.

A.T. Temergalieva believes that an electronic document can be considered written evidence if it contains thoughts that have evidentiary value and are perceived by reading written characters. A.P. Vershinin also classifies electronic documents as written evidence.

However, some lawyers believe that an electronic document cannot be considered as written evidence in its pure form, since the electronic document does not have a written form and does not have copyright uniqueness. Other proceduralists classify an electronic document as material evidence.

A.T. Bonner notes that at this stage of development of procedural legislation and the science of procedural law, we can conditionally talk about sites on the Internet as some specific material evidence. According to Art. 76 of the Arbitration Procedure Code of the Russian Federation, material evidence is objects that, by their appearance, properties, location or other characteristics can serve as a means of establishing circumstances relevant to the case. Article 73 of the Code of Civil Procedure of the Russian Federation contains a similar definition of material evidence. The Internet and a huge number of finding-

1 On information, information technologies and information protection: federation. Law of July 27, 2006 No. 149-FZ // Parliamentary newspaper. - 2006. - August 3.

The sites contained in it, of course, are not material objects that can be picked up. However, they are material phenomena.

I.Yu. Vostrikov believes that electronic documents cover all means of evidence, but require additional regulation.

It can be concluded that the electronic document is mixed evidence relating to written and physical evidence. They are united by the presence of information necessary for the case, but are distinguished by the specific form of existence of such information as a record on an electronic medium. It is the form of the electronic document that is its distinguishing feature compared to other types of evidence.

In order to become evidence, an electronic document must not contain any information, but only necessary to establish the presence or absence of circumstances justifying the demands and objections of the parties, as well as other circumstances relevant for the correct resolution of the dispute. Also, the electronic document must be obtained in compliance with the procedural rules for collecting evidence.

In order for evidence, including electronic evidence, to be considered admissible and used as a means of proof, it must be collected, i.e., in one way or another, obtained at the disposal of the subject of proof as evidence, and information relevant to the case must be extracted from it.

For example, in a case of failure to fulfill obligations under a supply contract. As evidence of fulfillment of delivery obligations, the defendant provided electronic correspondence between the parties regarding the execution of the contract (about the inadequate quality of the delivered products). The plaintiff objected to the inclusion of electronic correspondence in the case.

The court found that the supply agreement between the parties was concluded through the exchange of documents on e-mail. In a similar manner, the defendant sent the plaintiff the charter, certificates of state registration, tax registration, an invoice has been issued for prepayment. In turn, the plaintiff sent payment orders to the defendant via e-mail to transfer the advance payment and notified him of his readiness to accept the goods. According to the court, this practice

relationship between the parties indicates that the parties perceived email letters sent from certain 1P addresses as coming from authorized persons of the parties.

In assessing the evidence provided by the plaintiff, the court also took into account the fact that the plaintiff did not provide evidence of the unreliability of the parties’ electronic correspondence, including the unreliability of the 1P addresses provided2.

In practice, problems arise in collecting and providing electronic information to the court. As Ivlev notes, if you simply print out a page from an Internet site, it is unlikely to be recognized by the court as a document. To give an Internet page the quality of a document, it must be certified by a notary. However, it is not always possible to establish the authenticity of an electronic document with the help of a notary; the Internet site page can be changed or deleted. A printed Internet page, even certified by a notary, is not always enough.

At the moment, in the legislation of the Russian Federation there are no specific criteria for the reliability of data contained in an electronic document. Russian procedural legislation specifies only one requirement for electronic documents - the use when creating them of a method that makes it possible to establish their authenticity (Part 1 of Article 71 of the Code of Civil Procedure of the Russian Federation). The most necessary requirements for electronic documents are that the electronic document must be readable and have the necessary details.

An electronic digital signature is one of the ways to establish the authenticity of the origin of an electronic document. The concept and procedure for using electronic digital signature established in the Federal Law “On Electronic Signatures” -". There are also other ways to verify the authenticity of an electronic document. M.D. Olegov suggests: “to determine the truth of a document received via e-mail, it is possible to study in court with the help of an electronic specialist engaged by the court document not on a magnetic medium (floppy disk, laser disk), but directly on the recipient’s computer.

2 Decision of the Arbitration Court of the Republic of Bashkortostan dated February 8, 2012 in case No. A07-16645/2011.

3 About electronic signature: federal. law of April 6

the attraction of a specialist will truly be rational only if the external results of his work are given an evidentiary meaning, otherwise an expert study will still have to be ordered.

Based on judicial practice, we can conclude that if an electronic document is sealed with an electronic digital signature and is presented in electronic or documented form, then the court will recognize it as admissible evidence. Yes, in action

In invalidating the decision made by the Office of the Federal Antimonopoly Service, in terms of recognizing as lawful the refusal of admission to participate in the competition, the court satisfied the plaintiff’s demands.

As the competition commission and the antimonopoly authority considered, the company submitted a scanned extract from the Unified State Register of Legal Entities, signed with the digital signature of the director of the company, which violates the requirements of subparagraph “b” of paragraph

1 part 3 article 25 of Federal Law No. 94-FZ.

Disagreeing that the document does not meet these requirements, the courts recognized that the company’s presentation of a scanned color extract from the Unified State Register of Legal Entities (stitched and numbered by the tax authority) in electronic form and signed by the electronic digital signature of the director of the company does not contradict the requirements of the legislation on placing orders.

Taking into account the above, assessing according to the rules of Article 71 of the Arbitration Procedure Code Russian Federation an extract from the Unified State Register of Legal Entities submitted by the company, the courts recognized that the submission of an extract from the Unified State Register of Legal Entities, certified by the digital signature of the director of the company, as part of an application sent in the form of an electronic document1.

If an electronic document is not sealed with an electronic digital signature, but is certified by a notary before the court hearing, the court still accepts such evidence as admissible. In the Resolution of the Seventeenth Arbitration Court of Appeal dated November 24, 2014 No. 17AP-13426/2013-GK in case No. A60-10411/2013, the claim for compensation for violation of exclusive rights was satisfied by the court, since it was established that the plaintiff owned exclusive rights to the works, and also the fact of violation of his exclusive rights by the defendant.

"Resolution of the Federal Antimonopoly Service of the East Siberian District dated September 19, 2013 in case No. A19-22448/2012.

The applicant's appeal to the plaintiff's failure to provide the original images attached to the disputed contracts is rejected by the court of appeal, since, according to Art. 75 of the Arbitration Procedure Code of the Russian Federation, written evidence is presented to the arbitration court in the original or in the form of a duly certified copy.

The disputed images were submitted by the plaintiff to the case file as duly certified copies, which, given the circumstances of the case, is an acceptable method of presenting evidence.

Based on the foregoing, the court of first instance came to a reasonable conclusion that the plaintiff owned the exclusive rights to the relevant works.

To confirm the circumstances of the defendant’s violation of the plaintiff’s exclusive rights to the disputed works, the case materials presented a protocol of inspection of evidence dated September 20, 2012, AA No. 1215759, containing information about the defendant’s posting of disputed images on its website http://vdpo-ek.ru/5.

But if the electronic document is not signed with an electronic signature and not certified by a notary, then the opponent can easily refute such evidence.

Since Russian procedural legislation does not have clear criteria for the reliability of an electronic document, in practice there may be cases of non-recognition of the legal validity of an electronic document. In this connection, it is necessary to prescribe clear criteria for the admissibility of this evidence in the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation.

Thus, an electronic document as evidence must be understood as information about the circumstances to be established in the case, in a form suitable for storage and transmission using electronic means of communication, containing attributes and details that allow it to be identified, and also obtained in compliance with the procedural order of collection evidence. Since electronic evidence is increasingly being used in the process of proof, it seems necessary to define at the legislative level an electronic document as evidence. The electronic form of written evidence can replace or supplement the traditional written form and paper media. Changing the external form of written evidence does not change its essence.

Notes

1. Bonner A. T. Evidentiary value of information obtained from the Internet // Law. -2007. - No. 12.

2. Vershinin A. P. Electronic document: legal form and evidence in court: educational and practical guide. - M., 2000.

3. Vostrikov I. Yu. Electronic document as evidence in civil proceedings // Civil proceedings in a changing Russia: materials of the International. scientific-practical conferences. -Saratov, 2007.

4. Ivlev A. Web page as a source of evidence in the arbitration process. - http://www. netlaw.spb.ru/articles/paper05.htm

5. Olegov M.D. Written evidence // Commentary on the Arbitration Procedural Code of the Russian Federation / ed. M. S. Shakaryan. - M„ 2003.

6. Temergalieva A. T. Electronic documents as evidence in court // Legal scientific network. Modern law: collection of online reports. - 2013. - https://www.sovremennoepravo.ru/

5 Resolution of the Seventeenth Arbitration Court of Appeal dated November 24, 2014 No. 17AP-13426/2013-GK in case No. A60-10411/2013.

The Internet, smartphones, electronic applications, video recorders and other various gadgets surround us every day and everywhere. But the issue of accepting such electronic evidence is decided in each case individually at the discretion of the court. Before the courts came to the conclusion that email data, screenshots or YouTube videos are not adequate evidence. But judicial practice is changing with the latest technological trends.

Problems and prospects for the development of electronic evidence

There are a number of problems associated with the use of electronic documents and electronic evidence.

Lack of definition of electronic evidence
In accordance with clause 11.1 of Art. 2 of the Federal Law of July 27, 2006 N 149-FZ “On information, information technologies and information protection”, an electronic document is documented information presented in electronic form, i.e. in a form suitable for human perception using electronic computers, as well as for transmission over information and telecommunication networks or processing in information systems. An electronic document must be distinguished from an electronic message. According to this Law, an electronic message is information transmitted or received by a user of an information and telecommunications network (Clause 10, Article 2).

However, this definition does not fully cover all electronic evidence, for example, electronic programs, computer programs, SMS alerts, screenshots.

Lack of opportunity to obtain evidence procedurally
In some cases, electronic documents are not accepted because they were not received in a procedural manner. The court cannot consider as proven circumstances that are confirmed only by a copy of a document or other written evidence if the original document is lost and not handed over to the court, and the copies of this document presented by each of the disputing parties are not identical to each other, and it is impossible to establish the true content of the original document using other evidence . An electronic document is not considered an original document.

The Arbitration Procedure Code of the Russian Federation contains an additional requirement for the admissibility of electronic evidence: the presence of a special provision authorizing its use either in the law or in an agreement concluded between the parties. And the legislation does not always contain an appropriate reference to the admissibility of such evidence.

Features of signing electronic documents
Introduced into the Code of Administrative Procedure of the Russian Federation, it is established that administrative statement of claim, statement, complaint, presentation and other documents can be submitted to the court electronically by filling out a form posted on the official website of the relevant court on the Internet. At the same time, it was determined that documents received via fax, electronic or other communication, as well as documents signed with an electronic signature, can be admitted as written evidence. If copies of documents are submitted to the court electronically, the court may require the production of the originals of these documents. This means that the documents must have electronic signature and are not always sufficient written evidence.

At the same time, the prospects for the development of electronic evidence in court can already be seen now:

1. Development of amendments to electronic justice.
   Just 20 years ago it was impossible to imagine filing claims in court and collecting evidence electronically, but today we actively use the “My Arbitrator” system and special services, and also have the ability to file a claim electronically.
2. Availability legislative framework use of electronic evidence.
   Both in the Arbitration Procedure Code of the Russian Federation, and in the Code of Civil Procedure of the Russian Federation and in the CAS of the Russian Federation, there are references to the possibility of using electronic evidence as a means of proving legal facts. This means that at the legislative level this evidence is recognized as admissible.
3. Acceptance of electronic evidence by courts.
   Currently, many courts already use electronic evidence, since they make it possible to establish legally significant facts in the absence of direct evidence or paper documents.

Correspondence by email

Most often nowadays, the employee and the employer, as well as counterparties, communicate through electronic correspondence. However, electronic correspondence is only applicable in certain cases. So, according to paragraph 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, documents received by fax, electronic or other communication, including using the information and telecommunications network Internet, are admitted as written evidence in cases and in the manner established by the Arbitration Procedure Code of the Russian Federation, others federal laws, other regulatory legal acts or agreement.

If the contract establishes confirmation of the completion of work or services by email, then the court will accept this as evidence. For example, in the Resolution of the Ninth Arbitration Court of Appeal dated February 16, 2015 N 09AP-59251/2014-GK in the case N The court confirmed that 13 letters were sent from the email address, containing attachments in the form of acts of acceptance of completed work, invoices and monthly reports on the website’s progress. The contents of the letters sent are completely identical to the letters attached by the Respondent. The court found that the fact of provision of services by the Defendant and their acceptance by the Plaintiff is further confirmed business correspondence by e-mail that occurred between the Parties during the entire period of execution of the Agreement, copies of letters are presented in the case materials.

Screenshot of an Internet resource page

Screenshots of Internet pages can also serve as evidence in court. Moreover, unlike electronic correspondence, recognition of a screenshot of a page on the Internet does not require a corresponding indication in the contract. In particular, screenshots of pages are often used to bring administrative liability.

As an example, we can cite the decision of the Arbitration Court of the Trans-Baikal Territory dated March 30, 2017 in the case № . In this legal dispute, a case was considered where the telecom operator was held liable, since the telecom operator does not restrict access to prohibited information resource. And as evidence of the lawful prosecution of administrative liability, the court accepted a screenshot of the electronic page.

According to Part 1 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation, evidence in a case of an administrative offense is any factual data on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an event of an administrative offense, the guilt of the person brought to administrative responsibility , as well as other circumstances relevant to the correct resolution of the case. Thus, the screenshots confirm the presence of an administrative violation event.

Screenshots are also considered by courts when considering disputes between counterparties. Thus, in the decision of the Arbitration Court of Appeal of the city of Vladivostok dated March 30, 2017 in the case in the case № . It was with the help of a screenshot that the existence of correspondence between the companies was proven, as well as the approval of the transfer of a power of attorney to the driver for the shipment of goods to the Buyer. This confirms the possibility of using a screenshot in relation to relationships between counterparties.

DVR data

The DVR data is not listed anywhere as admissible evidence. At the same time, if we talk about the evidence base in relation to violation of traffic rules, then such evidence has been used for quite a long time. And this is due to the presence of a corresponding norm in the Code of Administrative Offenses. Based on Part 3 of Article 28.6 of the Code of Administrative Offenses of the Russian Federation, in the event of an administrative offense provided for by Chapter 12 of this Code and recorded with the use of workers in automatic mode special technical means, having the functions of photography and filming, video recording, or means of photography and filming, video recording, a protocol on an administrative offense is not drawn up, and a resolution on a case of an administrative offense is made without the participation of the person against whom the case of an administrative offense has been initiated.

In the decision of the Perm Regional Court dated October 21, 2013 in case No. 7-1031-2013/21-605-2013, the court found it correct to hold the car owner administratively liable. The evidence base for the violation is two photographs vehicle and the recorded time during which the car was parked in a prohibited place.

In the decision of the Industrial District Court of Smolensk dated March 25, 2017 in case No. 5-275/2017, the court came to the conclusion that the car was involved in an accident and the culprit drove away. The neighbor passed on the video recording of the accident. The court, taking into account this evidence, as well as the absence of circumstances aggravating administrative liability, the identity of the perpetrator, his financial situation, admission of guilt, and finds it necessary to determine as a punishment an administrative fine in the amount of 1000 rubles.

SMS proof

SMS messages, as well as messages sent using special programs for mobile phones, have already entered our lives quite a long time ago. But SMS messages are also evidence in court.

As an example, we can cite the Appeal Ruling of the Sverdlovsk Regional Court dated May 20, 2016 in case No. 33-8564/2016. In this legal dispute, the issue of establishing the fact of labor relations was considered. The employee presented SMS messages and email correspondence as evidence of the existence of an employment relationship.

The essential features of labor relations, which make it possible to distinguish them from other types of legal relations, include: the personal nature of the rights and obligations of the employee, the employee’s obligation to perform a certain, predetermined labor function, the performance labor function in conditions of general labor with subordination to the rules of internal labor regulations, the remunerative nature of the labor relationship. Labor relations between an employee and an employer may arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his authorized representative in the case when employment contract was not properly formalized (part 3 of article 16 Labor Code RF). Accordingly, SMS became proof that the employee had started work.

However, the opposite practice also exists. In the Appeal ruling of the St. Petersburg City Court dated October 5, 2016 No. 33-19528/2016 in case No. 2-6626/2015, the court indicated that the printouts of SMS messages presented by the plaintiff as evidence do not meet the requirements for the admissibility of evidence established by paragraph 7 of Art. . 67 Code of Civil Procedure of the Russian Federation.

Using Skype

Skype makes it possible to exchange information, files, photos, text messages. Accordingly, such correspondence can also be evidence in court. Article 434 Civil Code The Russian Federation provides that an agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging letters, telegrams, telexes, telefaxes and other documents, including electronic documents transmitted via communication channels, allowing to reliably establish that the document comes from a party to the contract.

In the Resolution of the Arbitration Court of the Moscow District dated 02/01/2017 N F05-21794/2016 on the case N The court considered the fact of exchange of documents via Skype. The defendant presented in the case materials a copy of the document called the loan agreement, signed on behalf of general director company, and explained that this agreement was received by him electronically using the Skype system from the plaintiff. The court found that the original loan agreement was not presented and the plaintiff himself denied the fact of signing this agreement.

Using WhatsApp

Another messenger used by companies and individuals, is whatsapp. In the Decision of the Arbitration Court of the Republic of Karelia dated September 19, 2016 in the case N The company was found guilty of committing an administrative offense under Part 4 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation. His actions are qualified as failure by the resident to fulfill within the established period the obligation to receive into his bank accounts in an authorized bank the foreign currency due for the goods transferred to the non-resident. The company was brought to administrative liability in the form of a fine in the amount of 39,717.96 rubles.

At the same time, taking into account the actual circumstances of the case, the degree of public danger of the offense committed and the nature of this act, namely: full repayment of the debt for the receipt of foreign exchange earnings under the disputed contract agreement before the inspection and detection of the offense, the absence of evidence of society’s neglect of formal requirements of public law, correspondence with the counterparty via messenger (Skype, WhatsApp), the court considers it necessary to apply the provisions set out in paragraph 2 of the Resolution of the Constitutional Court of the Russian Federation dated 02/25/2014 N 4-P and reduce the administrative sanction below the lower limit assigned within the framework of the controversial by resolution within the sanction provided for in Part 4 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation.

Thus, Skype and WhatsApp, together with other evidence, are recognized as admissible.

The use of electronic evidence is increasingly reflected in judicial practice. However, for the widespread use of electronic evidence, appropriate amendments to regulations are required.

Ekaterina Shestakova

tax audit and tax planning specialist

UDC 347.9 No. 2 (13)/2017, p. 31-34

PROBLEMS OF APPLYING ELECTRONIC EVIDENCE IN CIVIL AND ARBITRATION PROCESSES

Daria Vladimirovna Sedelnikova

Russian State University of Justice, Ural Branch, Chelyabinsk, Russian Federation E-mail: [email protected]

Scientific supervisor - Svetlana Aleksandrovna Burmistrova

Candidate of Legal Sciences, Associate Professor,

Russian State University of Justice, Ural Branch

The article is devoted to the problems of using electronic documents as evidence in civil and arbitration proceedings. The article examines the concept of an electronic document as evidence, revealing different opinions of various researchers regarding the legal nature of an electronic document. The problems of collecting and providing electronic information to the court, the problems of the absence in the legislation of the Russian Federation of specific criteria for the reliability of data contained in an electronic document are also considered. Ways to overcome this problem are revealed. Judicial practice on these issues is considered.

Key words: electronic document, evidence, legislation of the Russian Federation, written evidence, physical evidence, judicial practice, electronic digital signature, criteria for the admissibility of electronic evidence.

PROBLEMS OF APPLICATION OF THE ELECTRONIC EVIDENCE IN CIVIL AND ARBITRATION PROCEDURE

Darya Sedelnikova

Russian State University of Justice, Uralian branch, Chelyabinsk, Russian Federation

Email: [email protected]

Student advisor - Svetlana Burmistrova, Candidate of Law, Associate Professor,

Russian State University of Justice, Uralian branch

The article is devoted to problems of application of electronic documents as evidence in civil and arbitration procedures. In the article the concept of the electronic document as an evidence is considered, various opinions of different researchers on the legal nature of the electronic document are revealed. Also definite problems are considered: concerning collecting and providing electronic information in court and concerning the absence in the legislation of the Russian Federation of concrete criteria of reliability of the data which are contained in the electronic document. Ways of overcoming this problem are revealed. Court practice

on the named matters is considered.

Keywords: electronic document, evidence, legislation of the Russian Federation, written evidence, physical evidence, court practice, digital signature, criteria of admissibility of electronic evidence.

With the development of information technology in judicial practice, the use of an electronic document as a means of evidence is increasingly common. Legislation and science do not provide a complete definition of an electronic document that would reflect all its essential and distinctive properties.

None of the current laws contains the concept of an electronic document as evidence and does not explain what features it must have in order for the court to recognize it as admissible evidence and attach it to the case materials.

The legal definition of an electronic document is contained in Article 2 of the Federal

of the Federal Law of July 27, 2006 No. 149-FZ “On information, information technologies and information protection”, an electronic document should be understood as documented information presented in electronic form, that is, in a form suitable for human perception using electronic computers , as well as for transmission over information and telecommunication networks or processing in information systems1. This definition does not contradict the position outlined in the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation.

Although there are some legislative provisions, there is no clear position as to which means of proof an electronic document should be considered. Based on the provisions of the Code of Civil Procedure of the Russian Federation and the Arbitration Procedure Code of the Russian Federation, it can be assumed that the legislator classifies electronic documents as written evidence.

The Internet based on the provisions of Part 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation can be considered under another method of obtaining written evidence.

A.T. Temergalieva believes that an electronic document can be considered written evidence if it contains thoughts that have evidentiary value and are perceived by reading written characters. A.P. Vershinin also classifies electronic documents as written evidence.

However, some lawyers believe that an electronic document cannot be considered as written evidence in its pure form, since the electronic document does not have a written form and does not have copyright uniqueness. Other proceduralists classify an electronic document as material evidence.

A.T. Bonner notes that at this stage of development of procedural legislation and the science of procedural law, we can conditionally talk about sites on the Internet as some specific material evidence. According to Art. 76 of the Arbitration Procedure Code of the Russian Federation, material evidence is objects that, by their appearance, properties, location or other characteristics, can serve as a means of establishing circumstances relevant to the case. Article 73 of the Code of Civil Procedure of the Russian Federation contains a similar definition of material evidence. The Internet and a huge number of finding-

1 On information, information technologies and information protection: federation. Law of July 27, 2006 No. 149-FZ // Parliamentary newspaper. - 2006. - August 3.

The sites contained in it, of course, are not material objects that can be picked up. However, they are material phenomena.

I.Yu. Vostrikov believes that electronic documents cover all means of evidence, but require additional regulation.

It can be concluded that the electronic document is mixed evidence relating to written and physical evidence. They are united by the presence of information necessary for the case, but are distinguished by the specific form of existence of such information as a record on an electronic medium. It is the form of the electronic document that is its distinguishing feature compared to other types of evidence.

In order to become evidence, an electronic document must not contain any information, but only necessary to establish the presence or absence of circumstances justifying the demands and objections of the parties, as well as other circumstances relevant for the correct resolution of the dispute. Also, the electronic document must be obtained in compliance with the procedural rules for collecting evidence.

In order for evidence, including electronic evidence, to be considered admissible and used as a means of proof, it must be collected, i.e., in one way or another, obtained at the disposal of the subject of proof as evidence, and information relevant to the case must be extracted from it.

For example, in a case of failure to fulfill obligations under a supply contract. As evidence of fulfillment of delivery obligations, the defendant provided electronic correspondence between the parties regarding the execution of the contract (about the inadequate quality of the delivered products). The plaintiff objected to the inclusion of electronic correspondence in the case.

The court found that the supply agreement between the parties was concluded through the exchange of documents by e-mail. In a similar manner, the defendant sent the plaintiff the charter, certificates of state registration, tax registration, and issued an invoice for prepayment. In turn, the plaintiff sent payment orders to the defendant via e-mail to transfer the advance payment and notified him of his readiness to accept the goods. According to the court, this practice

relationship between the parties indicates that the parties perceived email letters sent from certain 1P addresses as coming from authorized persons of the parties.

In assessing the evidence provided by the plaintiff, the court also took into account the fact that the plaintiff did not provide evidence of the unreliability of the parties’ electronic correspondence, including the unreliability of the 1P addresses provided2.

In practice, problems arise in collecting and providing electronic information to the court. As Ivlev notes, if you simply print out a page from an Internet site, it is unlikely to be recognized by the court as a document. To give an Internet page the quality of a document, it must be certified by a notary. However, it is not always possible to establish the authenticity of an electronic document with the help of a notary; the Internet site page can be changed or deleted. A printed Internet page, even certified by a notary, is not always enough.

At the moment, in the legislation of the Russian Federation there are no specific criteria for the reliability of data contained in an electronic document. Russian procedural legislation specifies only one requirement for electronic documents - the use when creating them of a method that makes it possible to establish their authenticity (Part 1 of Article 71 of the Code of Civil Procedure of the Russian Federation). The most necessary requirements for electronic documents are that the electronic document must be readable and have the necessary details.

An electronic digital signature is one of the ways to establish the authenticity of the origin of an electronic document. The concept and procedure for using an electronic digital signature are established in the Federal Law “On Electronic Signature.” There are also other ways to verify the authenticity of an electronic document. M.D. Olegov suggests: “to determine the truth of a document received via e-mail, it is possible to investigate in a judicial meeting with the help of a specialist attracted by the court, an electronic document not on a magnetic medium (floppy disk, laser disk), but directly on the recipient’s computer. However,

2 Decision of the Arbitration Court of the Republic of Bashkortostan dated February 8, 2012 in case No. A07-16645/2011.

3 About electronic signature: federal. law of April 6

the attraction of a specialist will truly be rational only if the external results of his work are given an evidentiary meaning, otherwise an expert study will still have to be ordered.

Based on judicial practice, we can conclude that if an electronic document is sealed with an electronic digital signature and is presented in electronic or documented form, then the court will recognize it as admissible evidence. Yes, in action

In invalidating the decision made by the Office of the Federal Antimonopoly Service, in terms of recognizing as lawful the refusal of admission to participate in the competition, the court satisfied the plaintiff’s demands.

As the competition commission and the antimonopoly authority considered, the company submitted a scanned extract from the Unified State Register of Legal Entities, signed with the digital signature of the director of the company, which violates the requirements of subparagraph “b” of paragraph

1 part 3 article 25 of Federal Law No. 94-FZ.

Disagreeing that the document does not meet these requirements, the courts recognized that the company’s presentation of a scanned color extract from the Unified State Register of Legal Entities (stitched and numbered by the tax authority) in electronic form and signed by the electronic digital signature of the director of the company does not contradict the requirements of the legislation on placing orders.

Taking into account the above, having assessed, according to the rules of Article 71 of the Arbitration Procedural Code of the Russian Federation, the extract from the Unified State Register of Legal Entities submitted by the company, the courts recognized that the submission of an extract from the Unified State Register of Legal Entities, certified by the digital signature of the director of the company, as part of an application sent in the form of an electronic document1.

If an electronic document is not sealed with an electronic digital signature, but is certified by a notary before the court hearing, the court still accepts such evidence as admissible. In the Resolution of the Seventeenth Arbitration Court of Appeal dated November 24, 2014 No. 17AP-13426/2013-GK in case No. A60-10411/2013, the claim for compensation for violation of exclusive rights was satisfied by the court, since it was established that the plaintiff owned exclusive rights to the works, and also the fact of violation of his exclusive rights by the defendant.

"Resolution of the Federal Antimonopoly Service of the East Siberian District dated September 19, 2013 in case No. A19-22448/2012.

The applicant's appeal to the plaintiff's failure to provide the original images attached to the disputed contracts is rejected by the court of appeal, since, according to Art. 75 of the Arbitration Procedure Code of the Russian Federation, written evidence is presented to the arbitration court in the original or in the form of a duly certified copy.

The disputed images were submitted by the plaintiff to the case file as duly certified copies, which, given the circumstances of the case, is an acceptable method of presenting evidence.

Based on the foregoing, the court of first instance came to a reasonable conclusion that the plaintiff owned the exclusive rights to the relevant works.

To confirm the circumstances of the defendant’s violation of the plaintiff’s exclusive rights to the disputed works, the case materials presented a protocol of inspection of evidence dated September 20, 2012, AA No. 1215759, containing information about the defendant’s posting of disputed images on its website http://vdpo-ek.ru/5.

But if the electronic document is not signed with an electronic signature and not certified by a notary, then the opponent can easily refute such evidence.

Since Russian procedural legislation does not have clear criteria for the reliability of an electronic document, in practice there may be cases of non-recognition of the legal validity of an electronic document. In this connection, it is necessary to prescribe clear criteria for the admissibility of this evidence in the Civil Procedure Code of the Russian Federation and the Arbitration Procedure Code of the Russian Federation.

Thus, an electronic document as evidence must be understood as information about the circumstances to be established in the case, in a form suitable for storage and transmission using electronic means of communication, containing attributes and details that allow it to be identified, and also obtained in compliance with the procedural order of collection evidence. Since electronic evidence is increasingly being used in the process of proof, it seems necessary to define at the legislative level an electronic document as evidence. The electronic form of written evidence can replace or supplement the traditional written form and paper media. Changing the external form of written evidence does not change its essence.

Notes

1. Bonner A. T. Evidentiary value of information obtained from the Internet // Law. -2007. - No. 12.

2. Vershinin A.P. Electronic document: legal form and evidence in court: educational and practical guide. - M., 2000.

3. Vostrikov I. Yu. Electronic document as evidence in civil proceedings // Civil proceedings in a changing Russia: materials of the International. scientific-practical conferences. -Saratov, 2007.

4. Ivlev A. Web page as a source of evidence in the arbitration process. - http://www. netlaw.spb.ru/articles/paper05.htm

5. Olegov M.D. Written evidence // Commentary on the Arbitration Procedural Code of the Russian Federation / ed. M. S. Shakaryan. - M„ 2003.

6. Temergalieva A. T. Electronic documents as evidence in court // Legal scientific network. Modern law: collection of online reports. - 2013. - https://www.sovremennoepravo.ru/

5 Resolution of the Seventeenth Arbitration Court of Appeal dated November 24, 2014 No. 17AP-13426/2013-GK in case No. A60-10411/2013.

The practice of using electronic documents (hereinafter - ED) in Russian legal proceedings is developing at a steady pace: the positions of the parties are supported by those documents that were used in the interaction process, and increasingly this role is played by ED, which creates fertile ground for further development and improvement legal regulation question.

Any document, whether electronic or ordinary, must first of all certify any facts or events. To become evidence, a document must have legal force and be recognized by a court. In addition, ED has specific properties, which, when used as a means of proof, require a special approach:

• without meeting certain conditions, ED is difficult for a person to directly perceive;
• identification of the author of the ED is difficult;
• accessibility of ED for distortions and changes.

Understanding the issue of using ED as evidence for a non-specialist is not as simple as it seems at first glance. In this article we will try to present information on the proposed topic in a form accessible to the untrained user.

History of the issue in persons and documents

We perceive ED as a phenomenon of recent years. However, this is not quite true. In Russia, the first mention of ED as a source of evidence in criminal proceedings is in the doctoral dissertation of the famous Russian criminologist V.K. Lisichenko. In his work “Forensic Study of Documents” (1973), the author concludes that the widespread introduction of computer technology “creates objective grounds for information about facts and practical activities people, fixed by the signs of artificial language systems (machine languages), were considered in a general scientific and legal sense as an independent type of documents” (1).

In 1975 E.M. Muradyan developed this idea in his work “Machine document as evidence in civil proceedings.” He writes: “In connection with automated processing different types of information, new types of documents appeared. They, like ordinary ones, record certain information on the basis of which the court establishes certain circumstances that are important for the case under consideration” (2). He gave the documents the name “machine” and identified their distinctive features.

The high-profile 1979 case of computer theft of 78 thousand 584 rubles in Vilnius became famous due to the fact that for the first time a computer document appeared as evidence in court. The next similar process was registered in 1982 in the city of Gorky. In a case of grand theft, a machine document again played the role of evidence.

The first legislative act that established the possibility of using documents produced using electronic computing technology dates back to 1979 (3). “The parties to arbitration cases, in support of their claims and objections, have the right to submit to arbitration documents prepared using electronic computer technology. These documents must be accepted by the arbitration bodies on a general basis as written evidence,” the normative act states. Documents recognized as evidence in the case were required to have certain details, as well as a form that would allow the content to be understood.

In 1983, in the Resolution of the Plenum of the Supreme Soviet of the USSR “On the application of procedural legislation when considering civil cases in the court of first instance” (4), it was stated that “if necessary, the court may accept as written evidence documents obtained using electronic computer technology "

In the 90s of the last century, legislation on the use of ED began to develop at an accelerated pace. In 1992, the Law of the Russian Federation “On the legal protection of programs for electronic computers and databases” was published (5). It equated computer programs with intellectual property on a par with works of literature and art. In 1993, the provisions of this normative act were confirmed and specified in the law “On Copyright and Related Rights” (6).

In 1994, the Supreme Arbitration Court (hereinafter referred to as the SAC) of the Russian Federation, in a letter “On certain recommendations adopted at meetings on judicial arbitration practice,” clearly defined the criteria for an electronic signature (7). In the same year, the law “On the Mandatory Deposit of Documents” (8) as individual species documents identified computer programs, databases and electronic publications. The Federal Law (hereinafter referred to as the Federal Law) of 1995 “On Information, Informatization and Information Protection” (9) defined a document as documented information recorded on a tangible medium with details that allow it to be identified.

Federal Law of the Russian Federation dated April 6, 2011 N 63-FZ “On Electronic Signature” determined the legal conditions for the use of an electronic signature (hereinafter referred to as ES) in electronic digital signature exchange processes, subject to which an electronic signature is recognized as legally equivalent to a handwritten signature in a paper document. Determined the conditions for using the electronic signature, the status of certification centers issuing signature key certificates, as well as the features of using the digital signature.

The 2006 Federal Law “On Information, Information Technologies and Information Protection” (10) legalized the concepts of “electronic message”, “information system operator”, “information technology”, “information holder”.

As we can see, legislation on electronic documentation is developing quite actively. However, in world practice, such laws have been in effect for more than a decade. Russian legal framework definitely needs further development and improvement.

Use of ED in international practice

The international practice of recognizing the legal force of ED is rich in examples when an electronic document with an ED is equal in status and force to a handwritten signature. And, sometimes, it is more significant than an ordinary paper document.

So, in England, back in 1968, when protecting the legitimate interests of citizens in judicial procedure Information contained in a computer document was accepted as evidence, subject to certain conditions for using the machine. In this way, judicial protection of the rights of subjects of electronic document circulation was ensured.

Electronic data exchange agreed upon by trading partners in standard contract, which was developed by the American Bar Association, enshrined a provision that does not question the legal validity of electronic communications provided that certain conditions of their transmission and storage are met. If such a message was transmitted with an electronic signature, then for the parties involved they had exactly the same legal force as ordinary documents sealed with a handwritten signature.

In the US (Utah) Law of 1995 “On Digital Signature”, a document signed with an electronic signature is recognized as valid as an ordinary paper document and has equal legal force. Art. 1316-3 of the Civil Code (hereinafter referred to as the Civil Code) of France does not make an exception to generally accepted world practice and states: “Text on electronic media has the same evidentiary force as text on paper.”

Electronic documents as evidence

Civil process

Let's return to electronic documents as a means of proof. According to Art. 55 of the Civil Procedure Code (hereinafter referred to as the Civil Procedure Code), information about facts that are important for the correct resolution of the case “can be obtained from explanations of the parties and third parties, testimony of witnesses, written and material evidence, audio and video recordings, and expert opinions.”

The Code of Civil Procedure of the Russian Federation directly classifies ED as written evidence and clarifies possible ways to obtain it. So, part 1 of Art. 71 defines written evidence as “documents and materials made in the form of a digital, graphic record, including those received by facsimile, electronic or other communication or in any other way that allows the authenticity of the document to be established.”

There are similar provisions in the Civil Code of the Russian Federation. “An agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging documents through postal, telegraphic, teletype, telephone, electronic or other communications that make it possible to reliably establish that the document comes from a party to the agreement” (clause 2 Art. 434)

Clause 2 Art. 160 of the Civil Code establishes that the use of an electronic signature, as well as another analogue of a handwritten signature, when making transactions is permitted in cases provided for by law or by agreement of the parties.

criminal process

Electronic documents, as evidence in a criminal case, can appear as other documents or as physical evidence (11).

The collection of evidence in criminal proceedings is entrusted to the inquirer, investigator, prosecutor or court (Part 1 of Article 86 of the Code of Criminal Procedure). However, the criminal procedure law grants the right to collect evidence in a criminal case to the suspect, accused, victim, civil plaintiff and civil defendant and their representatives, as well as to the defense lawyer (Parts 2, 3 of Article 86). The court recognizes as admissible evidence ED obtained in a manner permitted by law and having legal force.

Thus, properly executed electronic documents can be used by the majority of participants in criminal proceedings as evidence to substantiate their position.

Arbitration process

The Arbitration Procedural Code (hereinafter - APC) recognizes electronic documents as written evidence. The law defines written evidence as “containing information about circumstances relevant to the case, contracts, acts, certificates, business correspondence, and other documents made in the form of a digital, graphic record or in any other way that allows the authenticity of the document to be established” (Part 1 of Art. 75 APC).

The APC establishes cases in which documents received by fax, electronic or other communication, including using the Internet, as well as documents signed with an electronic signature or other analogue of a handwritten signature, are accepted as written evidence. If copies of documents are submitted in electronic form, the court may require the originals of the documents (Part 3 of Article 75).

Each person participating in the case is obliged to prove the circumstances to which he refers as the substantiation of his claims and objections. ED presented as evidence must have legal force; only then will they be recognized by the court as admissible evidence and used as the basis for the decision. The legal force of an ED is given by the confirmed authority of its creator, authenticity, as well as mandatory details, which include the signature of an authorized person, including an electronic one.

Arbitrage practice

Despite the problems associated with the use of ED and ES, judicial practice is being formed in Russia in which courts recognize the legal force of ED. Thus, when considering case No. KG-A40/4465-00, the Federal Arbitration Court (hereinafter referred to as the FAS) of the Moscow District, in its ruling dated October 5, 2000, indicated that, according to Art. 5 of the Federal Law “On Information”, the legal force of an ED can be confirmed by an electronic signature if the necessary technical means are available that ensure signature identification, as well as if the regime for their use is observed.

The Federal Antimonopoly Service of the Central District, in Resolution No. 172/5 dated April 28, 2000, declared illegal the demands of the tax authority to provide bank statements in paper form with the signatures of the institution’s employees and certified by a seal if such statements are available in electronic form. In its ruling, the court indicated that drawing up account statements in electronic form is legal and is based on the Law “On Information, Informatization and Information Protection,” which provides that ED confirmed by electronic signature has legal force. ED are accepted in business transactions between banks and clients and are recognized by a letter from the Bank of Russia dated February 10, 1998. N 17-P. A similar dispute, but already guided by the law “On ES”, was resolved by the FAS of the Volga-Vyatka District by resolution of October 6, 2003 No. A17-842/5.

The legal force of the document signed by the electronic signature was recognized by the Federal Antimonopoly Service of the Moscow District in its resolution dated 05.11. 2010 No. KG-A40/8531-03. Rostelecom LLC acted as the plaintiff in the case of recovery of losses from the bank. In the statement, the plaintiff stated that he did not send an electronic payment order through the “Client - Sberbank” system to transfer funds from his account to the bank. Despite this, the bank withdrew money from the account. The examination appointed by the arbitration court showed that the electronic signature on the ED is correct and belongs to an official of the plaintiff organization. The court rejected the claim because The plaintiff did not provide documents confirming the loss of the floppy disk with the electronic signature.

Determinations of the Supreme Arbitration Court of the Russian Federation dated June 17. 2010 No. VAS-8027/10 and No. VAS-8138/10 contain similar decisions on disputes between legal entities and banks when using the “Client-Bank” system and electronic signature.

Thus, CJSC Alaksi filed claims against OJSC Joint-Stock Commercial Bank Bank of Moscow in the amount of about one million rubles. More than 2.5 million rubles were transferred by payment order from the CJSC account to the accounts of other banks. More than half of the funds were returned. The Supreme Arbitration Court of the Russian Federation indicated: “taking into account that the Internet Bank-Client system used does not allow the bank itself to create a new message on behalf of the client or transfer such an opportunity to a third party, the court rejects the claim due to the lack of evidence of improper execution by the defendant of the bank account agreement and unlawful disposal of the plaintiff’s funds, since electronic payment orders No. 54 and No. 55 dated February 24, 2009, received by the defendant through the Bank-Client system, were signed with electronic signatures of persons authorized by the plaintiff.”

Another example: MOSFARMTORG LLC filed a claim for the recovery of 5 million rubles from Reserve Finance and Investments Bank CJSC. Based on payment orders signed by the electronic signature of the general director of the LLC, the bank debited a similar amount from the client’s current account. The court in its ruling stated: “taking into account the act drawn up based on the results of the work of the expert commission, which established the authenticity of the electronic signature on payment orders, on the basis of which the bank wrote off controversial cash, the courts came to the conclusion that the claim was rejected due to the lack of evidence that the bank caused losses to the company due to unlawful actions (inaction).

The WM lending service LendMoney.Ru filed a lawsuit to collect a debt from citizen S.S. Smirnova, who, having taken out a loan in the amount of 1300 WMZ, did not repay it within the agreed period. As a result, the court ruled in favor of the plaintiff, obliging the debtor to pay not only the debt, but also legal costs. The evidence included exclusively electronic documents - an agreement on the use of the service, a loan agreement for title units, copies of applications for obtaining a certificate by the plaintiff and defendant, etc.

In 1993, the YUKON company, carrying out legal services, commissioned by the bank, developed a methodology for concluding financial transactions using an electronic digital signature and a modem. Using the electronic signature, an agreement on payment for the order was also signed. After a certain period of time, the customer refused to pay for the company’s services. The case was transferred to the Moscow FAS, which recognized the agreement with the ED as competent. Losses in the amount of 100 thousand rubles were recovered from the financial institution.

Legal force of an electronic document

To recognize the legal force of an ED, it is necessary to determine its relevance and admissibility (12).

In this regard, the court assesses the following:

• whether this document is significant for the consideration and resolution of the case (relevance of evidence);
• whether the procedural form defined by law for obtaining a document as a means of proof has been observed (admissibility of evidence).

The law does not establish formal requirements for what evidence is reliable and what is not. Overall rating evidence in civil proceedings given on the basis of the internal conviction of the court. However, when assessing written evidence, the court must ensure that the document comes from the body authorized to represent this type evidence, signed by a person who has the right to affix his signature, and contains all the essential details (part 5 of article 67 of the Code of Civil Procedure of the Russian Federation).

Thus, an electronic document is given legal force by the confirmed authority of its creator, authenticity, as well as mandatory details.

The authority of the ED creator is confirmed job descriptions, orders and other legal documents.

Mandatory details of the electronic document

Mandatory details of an electronic document are legally enshrined in a number of legal acts (13), according to which the electronic document must contain:

• registration number and date;
• signature of an authorized person (handwritten, electronic signature, etc.);
• name and location (postal address) of the organization in which the ED was compiled;
• additional details.

Mandatory and additional details allow the court or other official to uniquely identify the document.

Authenticity of the electronic document

The authenticity and immutability of the ED is ensured with the help of an electronic signature, the functions of which are to protect the document from forgery, as well as confirm the ED signature authorized person, designation of the will of the signatory, compliance with the written form of the document.

Art. 4 Federal Law “On ES” defines following conditions equivalence of electronic signature and handwritten signature:

• the signature key certificate related to this electronic signature has not lost force (is valid) at the time of verification or at the time of signing the electronic document if there is evidence determining the moment of signing;
• the authenticity of the electronic signature in the electronic document is confirmed;
• The electronic signature is used in accordance with the information specified in the signature key certificate.

Although an electronic signature is a complete electronic analogue of a conventional signature, it is implemented using mathematical transformations over the contents of the document. Special cryptographic algorithms used to create and verify the electronic signature guarantee the impossibility of falsification, therefore the electronic signature guarantees the irrefutability of authorship.

The increase in the flow of electronic documents between foreign partners makes it necessary to resolve issues of recognition of the legal force and authenticity of documents on interstate level. Thus, in order to develop a unified policy to create a common information space and close interaction between participating countries, the Commission on information security under the Coordination Council of the CIS Member States on Informatization, back in 2009, developed a draft Convention on the recognition procedure legal significance foreign electronic documents and/or their electronic signatures in international information exchange.

The document resolves many problematic issues related to interstate electronic document management. However, it has not yet been approved by the Council of Heads of Government of the CIS.

Recognition of a foreign signature key certificate on the territory of the Russian Federation is carried out in accordance with Art. 18 of the Law “On ES”: “A foreign signature key certificate, certified in accordance with the legislation of the foreign state in which this signature key certificate is registered, is recognized on the territory of the Russian Federation if the procedures established by the legislation of the Russian Federation for recognizing the legal value of foreign documents are performed.”

When evaluating ED as evidence, the court first of all takes into account the methods of formation, storage, transfer and identification of the person who compiled it. According to Part 2 of Art. 71 of the Code of Civil Procedure of the Russian Federation, “Written evidence shall be presented in the original or in the form of a duly certified copy.” In this case we are talking about notarized authentication of documents.

If there is a need to confirm the authenticity of an electronic signature, the role of a notary is performed by the Certification Center, whose activities are regulated by Art. Art. 8 - 15 Federal Law “On ES”.

The certification authority issuing signature key certificates for use in public information systems must be entity, which has the necessary material and financial capabilities and bears civil liability to users of key certificates (Article 8).

The demand for the services and service functions of certification centers is great and will only grow in the future. Already today, many experts are inclined to believe that fulfilling the tasks of building an electronic state is impossible without creating and legal registration electronic notary.

Conclusion and development forecast

Today in Russia a comprehensive legal system is being developed and created for the use of ED in all spheres of our lives. The insufficient development of legal regulation increases the role of judicial practice in eliminating legal gaps. But legislation is also developing at a rapid pace in full accordance with international trends. Already now we can say with complete confidence that every citizen can use ED and ES to protect their rights. Only in 2010, dozens of regulatory legal acts came into force in Russia, covering all spheres of society, which touch upon issues of regulating electronic document management and providing electronic documents with an electronic signature.

In recent years, the leadership of the Russian Federation has been taking a number of measures aimed at creating a special “electronic state” infrastructure that would ensure the reliability and legal significance of electronic document management.

The main document regulating this area of ​​activity of government and other structures is the Federal target program « Electronic Russia(2002-2010), approved by Decree of the Government of the Russian Federation of January 28, 2002 No. 65 with subsequent amendments and additions (14).

Objectives of the Program: ensuring transparency and openness of the work of government bodies; achieving public accessibility of state information resources; promoting the development of independent media; organization and development of the system e-commerce, development of electronic state infrastructure, and many others.

According to legislators, the infrastructure of the electronic state should include:

• a system of electronic signature certification centers available to citizens;
• electronic notary, which performs the function of certifying the time of provision of ED;
• electronic archive ensuring the safety of electronic documents and credentials;
• information disclosure system (access to public state accounting data);
• electronic field mail;
• electronic catalog (register of electronic state accounting systems, accessible to citizens).

As we see, to date not all of the Program’s objectives have been completed. However, given the importance attached to the creation of an electronic state by the leadership of the Russian Federation, work on the implementation of the Program will continue. We can only hope that very soon all elements of the electronic state infrastructure will find their legislative design.

Information sources

Lisichenko V.K. Forensic research of documents (legal and methodological problems): Dis. ... doc. legal Sci. - Kyiv, 1973. - P. 49-56.). ^

See: Muradyan E. Machine document as evidence in civil proceedings // Sov. just. - 1975. - No. 22. - P. 12. ^

Instructions of the State Arbitration Court of the USSR dated June 29, 1979 N I-1-4 “On the use of documents prepared using electronic computer technology as evidence in arbitration cases.” ^

In the Resolution of the Plenum of the Supreme Court of the USSR of December 1, 1983 N 10 “On the application of procedural legislation when considering civil cases in the court of first instance” (now cancelled). ^

Law of the Russian Federation of September 23, 1992 N 3523-I “On the legal protection of programs for electronic computers and databases” (repealed 01/01/2008). ^

Letter of the Supreme Arbitration Court of the Russian Federation dated August 19, 1994 N S1-7/OP-587 “On certain recommendations adopted at meetings on judicial arbitration practice.” ^

Federal Law of February 20, 1995 N 24-FZ “On Information, Informatization and Information Protection” (now repealed). ^

Federal Law of July 27, 2006 N 149-FZ “On information, information technologies and information protection” (as amended on July 27, 2010) ^

Art. 84, 74 part 2 clause 6, 81 part 1 clause 3 Code of Criminal Procedure of the Russian Federation. ^

Art. 60, Art. 59 Code of Civil Procedure of the Russian Federation; Art. 88 part 1 of the Code of Criminal Procedure of the Russian Federation; With. 67, art. 68 Arbitration Procedure Code of the Russian Federation. ^

Federal Law of January 10, 2002 No. 1-FZ “On Electronic Signatures” (as amended on November 8, 2007); Federal Law of July 27, 2006 N 149-FZ “On information, information technologies and information protection”; Federal Law of November 21, 1996 N 129-FZ “On Accounting” (as amended on November 23, 2009); Resolution of the State Statistics Committee of the Russian Federation dated January 5, 2004 N 1 “On approval of unified forms of primary accounting documentation on accounting of labor and its payment”; State standard RF GOST R 6.30-2003 “Unified documentation systems. Unified system of organizational and administrative documentation. Requirements for document preparation”; State standard of the Russian Federation GOST 6.10.4-84 “Unified documentation systems. Giving legal force to documents on computer media and typographs created by computer technology. Basic provisions.” ^

“Russian Business Newspaper” dated February 12, 2002 N 6, dated February 19, 2002 N 7, dated February 27, 2002 N 8, in the Collection of Legislation of the Russian Federation dated February 4, 2002 N 5 Art. 531.^

The Internet, smartphones, electronic applications, video recorders and other various gadgets surround us every day and everywhere. But the issue of accepting such electronic evidence is decided in each case individually at the discretion of the court. Previously, courts came to the conclusion that email data, screenshots or YouTube videos were not adequate evidence. But judicial practice is changing with the latest technological trends.

Problems and prospects for the development of electronic evidence

There are a number of problems associated with the use of electronic documents and electronic evidence.

Lack of definition of electronic evidence
In accordance with clause 11.1 of Art. 2 of the Federal Law of July 27, 2006 N 149-FZ “On information, information technologies and information protection”, an electronic document is documented information presented in electronic form, i.e. in a form suitable for human perception using electronic computers, as well as for transmission over information and telecommunication networks or processing in information systems. An electronic document must be distinguished from an electronic message. According to this Law, an electronic message is information transmitted or received by a user of an information and telecommunications network (Clause 10, Article 2).

However, this definition does not fully cover all electronic evidence, for example, electronic programs, computer programs, SMS alerts, screenshots.

Lack of opportunity to obtain evidence procedurally
In some cases, electronic documents are not accepted because they were not received in a procedural manner. The court cannot consider as proven circumstances that are confirmed only by a copy of a document or other written evidence if the original document is lost and not handed over to the court, and the copies of this document presented by each of the disputing parties are not identical to each other, and it is impossible to establish the true content of the original document using other evidence . An electronic document is not considered an original document.

The Arbitration Procedure Code of the Russian Federation contains an additional requirement for the admissibility of electronic evidence: the presence of a special provision authorizing its use either in the law or in an agreement concluded between the parties. And the legislation does not always contain an appropriate reference to the admissibility of such evidence.

Features of signing electronic documents
Introduced into the Code of Administrative Procedure of the Russian Federation, it is established that an administrative statement of claim, statement, complaint, presentation and other documents can be submitted to the court in electronic form by filling out a form posted on the official website of the relevant court on the Internet. At the same time, it was determined that documents received via fax, electronic or other communication, as well as documents signed with an electronic signature, can be admitted as written evidence. If copies of documents are submitted to the court electronically, the court may require the production of the originals of these documents. This means that documents must have an electronic signature and are not always sufficient written evidence.

At the same time, the prospects for the development of electronic evidence in court can already be seen now:

1. Development of amendments to electronic justice.
   Just 20 years ago it was impossible to imagine filing claims in court and collecting evidence electronically, but today we actively use the “My Arbitrator” system and special services, and also have the ability to file a claim electronically.
2. Availability of legislative framework for the use of electronic evidence.
   Both in the Arbitration Procedure Code of the Russian Federation, and in the Code of Civil Procedure of the Russian Federation and in the CAS of the Russian Federation, there are references to the possibility of using electronic evidence as a means of proving legal facts. This means that at the legislative level this evidence is recognized as admissible.
3. Acceptance of electronic evidence by courts.
   Currently, many courts already use electronic evidence, since they make it possible to establish legally significant facts in the absence of direct evidence or paper documents.

Correspondence by email

Most often nowadays, the employee and the employer, as well as counterparties, communicate through electronic correspondence. However, electronic correspondence is only applicable in certain cases. So, according to paragraph 3 of Art. 75 of the Arbitration Procedure Code of the Russian Federation, documents received by fax, electronic or other communication, including using the information and telecommunications network Internet, are admitted as written evidence in cases and in the manner established by the Arbitration Procedure Code of the Russian Federation, other federal laws, and other regulatory legal acts or an agreement.

If the contract establishes confirmation of the completion of work or services by email, then the court will accept this as evidence. For example, in the Resolution of the Ninth Arbitration Court of Appeal dated February 16, 2015 N 09AP-59251/2014-GK in the case N The court confirmed that 13 letters were sent from the email address, containing attachments in the form of acts of acceptance of completed work, invoices and monthly reports on the website’s progress. The contents of the letters sent are completely identical to the letters attached by the Respondent. The court found that the fact of provision of services by the Defendant and their acceptance by the Plaintiff is further confirmed by business correspondence by e-mail that took place between the Parties during the entire period of execution of the Agreement; copies of the letters are presented in the case materials.

Screenshot of an Internet resource page

Screenshots of Internet pages can also serve as evidence in court. Moreover, unlike electronic correspondence, recognition of a screenshot of a page on the Internet does not require a corresponding indication in the contract. In particular, screenshots of pages are often used to bring administrative liability.

As an example, we can cite the decision of the Arbitration Court of the Trans-Baikal Territory dated March 30, 2017 in the case № . In this legal dispute, a case was considered where a telecom operator was held liable, since the telecom operator does not restrict access to a prohibited information resource. And as evidence of the lawful prosecution of administrative liability, the court accepted a screenshot of the electronic page.

According to Part 1 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation, evidence in a case of an administrative offense is any factual data on the basis of which the judge, body, official in charge of the case establishes the presence or absence of an event of an administrative offense, the guilt of the person brought to administrative responsibility , as well as other circumstances relevant to the correct resolution of the case. Thus, the screenshots confirm the presence of an administrative violation event.

Screenshots are also considered by courts when considering disputes between counterparties. Thus, in the decision of the Arbitration Court of Appeal of the city of Vladivostok dated March 30, 2017 in the case in the case № . It was with the help of a screenshot that the existence of correspondence between the companies was proven, as well as the approval of the transfer of a power of attorney to the driver for the shipment of goods to the Buyer. This confirms the possibility of using a screenshot in relation to relationships between counterparties.

DVR data

The DVR data is not listed anywhere as admissible evidence. At the same time, if we talk about the evidence base in relation to violation of traffic rules, then such evidence has been used for quite a long time. And this is due to the presence of a corresponding norm in the Code of Administrative Offenses. Based on Part 3 of Article 28.6 of the Code of Administrative Offenses of the Russian Federation, in the event of an administrative offense provided for by Chapter 12 of this Code and recorded using special technical means operating in automatic mode that have the functions of photography and filming, video recording, or means of photography and filming, video recording, a protocol an administrative offense is not drawn up, and a resolution in a case of an administrative offense is made without the participation of the person against whom the case of an administrative offense has been initiated.

In the decision of the Perm Regional Court dated October 21, 2013 in case No. 7-1031-2013/21-605-2013, the court found it correct to hold the car owner administratively liable. The evidence base for the violation is two photographs of the vehicle and the recorded time during which the car was parked in a prohibited place.

In the decision of the Industrial District Court of Smolensk dated March 25, 2017 in case No. 5-275/2017, the court came to the conclusion that the car was involved in an accident and the culprit drove away. The neighbor passed on the video recording of the accident. The court, taking into account this evidence, as well as the absence of circumstances aggravating administrative liability, the identity of the perpetrator, his financial situation, admission of guilt, and finds it necessary to determine as a punishment an administrative fine in the amount of 1000 rubles.

SMS proof

SMS messages, as well as messages sent using special programs for mobile phones, have been part of our lives for quite some time. But SMS messages are also evidence in court.

As an example, we can cite the Appeal Ruling of the Sverdlovsk Regional Court dated May 20, 2016 in case No. 33-8564/2016. In this legal dispute, the issue of establishing the fact of labor relations was considered. The employee presented SMS messages and email correspondence as evidence of the existence of an employment relationship.

The essential features of labor relations, which make it possible to distinguish them from other types of legal relations, include: the personal nature of the rights and obligations of the employee, the employee’s obligation to perform a certain, predetermined labor function, the performance of a labor function in general labor conditions with subordination to the internal labor regulations, the paid nature of the labor relationship. Labor relations between an employee and an employer may arise on the basis of the employee’s actual admission to work with the knowledge or on behalf of the employer or his authorized representative in the case where the employment contract was not properly drawn up (Part 3 of Article 16 of the Labor Code of the Russian Federation). Accordingly, SMS became proof that the employee had started work.

However, the opposite practice also exists. In the Appeal ruling of the St. Petersburg City Court dated October 5, 2016 No. 33-19528/2016 in case No. 2-6626/2015, the court indicated that the printouts of SMS messages presented by the plaintiff as evidence do not meet the requirements for the admissibility of evidence established by paragraph 7 of Art. . 67 Code of Civil Procedure of the Russian Federation.

Using Skype

Skype makes it possible to exchange information, files, photos, text messages. Accordingly, such correspondence can also be evidence in court. Article 434 of the Civil Code of the Russian Federation provides that an agreement in writing can be concluded by drawing up one document signed by the parties, as well as by exchanging letters, telegrams, telexes, telefaxes and other documents, including electronic documents transmitted via communication channels, allowing one to reliably establish that the document comes from a party to the contract.

In the Resolution of the Arbitration Court of the Moscow District dated 02/01/2017 N F05-21794/2016 on the case N The court considered the fact of exchange of documents via Skype. The defendant presented in the case materials a copy of a document called a loan agreement, signed on behalf of the general director of the company, and explained that this agreement was received by him electronically using the Skype system from the plaintiff. The court found that the original loan agreement was not presented and the plaintiff himself denied the fact of signing this agreement.

Using WhatsApp

Another messenger used by companies and individuals is WhatsApp. In the Decision of the Arbitration Court of the Republic of Karelia dated September 19, 2016 in the case N The company was found guilty of committing an administrative offense under Part 4 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation. His actions are qualified as failure by the resident to fulfill within the established period the obligation to receive into his bank accounts in an authorized bank the foreign currency due for the goods transferred to the non-resident. The company was brought to administrative liability in the form of a fine in the amount of 39,717.96 rubles.

At the same time, taking into account the actual circumstances of the case, the degree of public danger of the offense committed and the nature of this act, namely: full repayment of the debt for the receipt of foreign exchange earnings under the disputed contract agreement before the inspection and detection of the offense, the absence of evidence of society’s neglect of formal requirements of public law, correspondence with the counterparty via messenger (Skype, WhatsApp), the court considers it necessary to apply the provisions set out in paragraph 2 of the Resolution of the Constitutional Court of the Russian Federation dated 02/25/2014 N 4-P and reduce the administrative sanction below the lower limit assigned within the framework of the controversial by resolution within the sanction provided for in Part 4 of Article 15.25 of the Code of Administrative Offenses of the Russian Federation.

Thus, Skype and WhatsApp, together with other evidence, are recognized as admissible.

The use of electronic evidence is increasingly reflected in judicial practice. However, for the widespread use of electronic evidence, appropriate amendments to regulations are required.

Ekaterina Shestakova

tax audit and tax planning specialist