Use of E-mails as Evidence in Ukrainian Courts

E-mail has long been used as an effective tool for conducting business, and business parties often do not have any other document, except electronic. Therefore, sooner or later, the question of need of electronic correspondence (e-mail) as evidence in court arises.
Ukrainian legislation does not establish a clear field of application and the use of electronic documents and e-mails in the business and common activities. Even professional lawyers do not have a clear answer for this question, because of that judges in court consider use of electronic communications (e-mail) as evidence arbitrarily.
What do Laws of Ukraine say about electronic documents and e-mails?
Part 1. Documents in electronic form
Article 207 of the Civil Code of Ukraine stipulates that if the terms of transaction (agreement) are recorded in one or more documents, letters, telegrams exchanged between the parties, the transaction is considered to be concluded in writing if the will of the parties expressed via teletype, electronic or other technical types of communication. Similarly, Article 181 of the Commercial Code of Ukraine permit to conclude commercial contracts in a simplified manner, for example, by exchange of letters, faksogramms, telegrams, telephone messages, etc.
Procedure for electronic document management, including contractual relations, is defined by the Law of Ukraine “About electronic documents and the electronic document management”. In accordance with Articles 5 and 6, electronic document is a document that fixes the information in the form of electronic data, including the mandatory details of the document. Electronic signature is an obligatory requisite of the electronic document that is used to identify the author and / or the signer of an electronic document by other subjects of electronic management, and putting of a digital signature completes the creation of an electronic document. Article 11 of the same Act provides that an electronic document is considered as a received by the addressee when an author receive the notification from the recipient, unless other conditions are provided by law or an agreement between the subjects of electronic document. If the agreement between the subjects of electronic document does not define the procedure for confirmation of receipt, such confirmation may be carried out in any order: automated or in other electronic form or in the form of a paper document. Such a confirmation must contain some information about the fact and the time of receipt of an electronic document and the sender of the confirmation. If the author does not receive a conformation of the fact of receipt of the electronic document it is considered that the electronic document is not received by the addressee. Separately, it is worth mentioning that according to the Law of Ukraine “On electronic digital signature” certificates of electronic keys, that you plan to use in the business document management, should be registered in the official Certification Authority, and an electronic key without a certificate can not be used in an official electronic document management.
Thus, on the basis of the written above, if you use an appropriate (one of authorized signatory of the contract) digital signature, the file is sent to the counterparty, a notice about reading of letter is received, such a contract is concluded in writing form, and the court does not have the right to refuse such a document.
Part 2. Electronic mailing (e-mail) in the electronic form
Although Ukraine actively use electronic digital keys, the main field of application is correspondence with fiscal and other bodies, the supply of official reporting. Because of that e-mail correspondence with authorities is always accepted as evidence in court without any issues. In business correspondence between legal entities and individuals these keys are not used that greatly complicates the task of proving certain facts by using electronic correspondence. So, the use of such correspondence as evidence is extremely problematic.
First of all, opponents in court who do not want to lose the case, simply do not admit that they receive emails. Taking into account that the use in business correspondence of public mail servers, rather than corporate, is more popular in Ukraine, the arguments of opponents will look reasonable.
In addition, the law does not clearly provide the form of evidence as an e-mail of a party hand in a printout from the site or e-mail, the opponent, can reasonably say it is a forgery and inadmissible evidence. Equally sensible is the question of the actual contents of the email which contained not only text but also attached files (documents, photos etc.).
Equally sensible is the argument will that there is no evidence that the correspondence was conducted by representative with appropriate powers, message can be sent by anyone. It is hard to fix the fact of receiving of an e-mail, because the mail server or mail client could determine the content of the message as spam and delete such a letter, and it is virtually impossible to prove the opposite.
Of course, on the side of concerned person are acts of jurisprudence, according to which the evidence can not be dismissed by the court according to the reason that they are not provided by procedural law, and therefore the court is obliged to accept such an evidence and to examine it in terms of their relevance and admissibility. So, the interested party would be able to convince the court in relevance and admissibility of such evidence as the e-mails. This can be done in various ways. For example, ask for an expertise, the conclusion of which can confirm sending e-mails by examining the computer, the data on the mail server, data hosting, research overhead of e-mails (so-called technical headers in the RFC-format) which can contain a lot of identifying information. Also, for example, in cases where the opponent is the owner of the corporate mail server, “tied” to the www-site of the company, its refusal to grant access to the server to the expert can be regarded as a deviation due to the fear of revealing evidence of his guilt.
In any case, if the parties agree about the admissibility of electronic correspondence using the appropriate e-mail addresses, specify the use of information from the technical headings in RFC-format, use corporate e-mail, rather than a public mail servers in the contract, it will greatly facilitate the evidence in court with reference to the e-mails.

Author: Kydalov Igor

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