In Ukraine, business use of electronic signatures is increasing and there is regular use of certificate-based digital signatures for day-to-day government activities.
In Ukraine, the legal framework on electronic signatures consists of the following legislation:
The Law on Electronic Trust Services defines three types of electronic signatures:
1. Simple Electronic Signature – any data in electronic form which is attached or logically associated with other data in electronic form and which is used by the signatory to sign a document.
2. Advanced Electronic Signature – this type of electronic signature must:
3. Qualified Electronic Signature – this type of electronic signature has the equivalent legal effect of a handwritten signature if it:
Qualified electronic signatures may only be based on a qualified public key certificate issued by a qualified trust service provider authorized for the issuance, verification and confirmation of qualified electronic signatures and included in the “Trusted List”. The Law on Electronic Trust Services recognizes the validity of qualified electronic signatures issued by foreign QTSPs. However, in practice, qualified electronic signatures issued by foreign qualified trust service providers are not recognized as valid in Ukraine due to an absence of international treaties which provide the list of foreign trust service providers which are recognized in Ukraine. Thus, only qualified electronic signatures issued by QTSPs listed on the Ministry of Digital Transformation of Ukraine official website https://czo.gov.ua/ are considered valid at this time.
With regard to the requirement that the signature be created with the use of a QESD, a QESD must provide the user of the trust services with the result of verification process and detect all events relating to information security breaches. Additionally, specific requirements for QESDs are defined for (i) notaries, state registrars; (ii) officials of local and state authorities, enterprises and institutions of state ownership for the purposes of conclusion of deals, provision of administrative and other services in electronic form, information exchange with other legal entities.
The admissibility and enforceability differences between these types of electronic signatures under Ukrainian law are as follows:
However, according to the Law of Electronic Documents neither the legal force of an electronic document nor its admissibility as evidence in court proceedings can be denied exclusively based on it being in electronic form. Moreover, according to the Law on Electronic Trust Services, an electronic signature cannot be deemed invalid or considered as inappropriate evidence in court if it does not comply with the requirements established for a qualified electronic signature.
Proceeding from this, a document shall not be automatically deemed invalid if it has been signed by simple or advanced signature instead of a qualified electronic signature even in the case when the use of a qualified electronic signature is directly required by the law. The invalidity of such a document shall be established by the court within the court dispute.
In the Ukraine, legal entities and private entrepreneurs must use qualified or advanced electronic signatures (certificate-based digital signatures) in relations with the banks. Also, according to the Law of Ukraine “On Personal Data Protection” No. 2297-VI as of 1 June 2010, personal data of Ukrainian data subjects may only be transferred outside of the Ukraine with explicit, detailed consent. This consent must be provided in Ukrainian language and the personal data must be transferred with an adequate level of protection as specified by Ukrainian law.
Transacting with public sector entities
Qualified electronic signatures are required to be used for official interactions with a state or municipal authority or a state-owned company. Additionally, state authorities and municipal bodies, state-owned companies, state registrars, and notaries must use only qualified electronic signatures while exercising their powers granted by the law.
Use cases requiring a traditional signature
The Law on Electronic Documents identifies the following documents that require a handwritten signature:
Additionally, even though the Law on Electronic Trust Services explicitly allows for notary certification to use qualified electronic signatures, often notaries in the Ukraine do not have technical capabilities to certify such documents electronically. Thus, in practice it not often possible to use electronic signatures for agreements that require state registration or documents that require notary certification.
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