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:
- Law of Ukraine “On Electronic Trust Services” No. 2155-VIII as of 5 October 2017 (Law on Electronic Trust Services) – This law regulates the provision of electronic trust services and electronic identification. It defines principles for electronic trust services, including cross-border services, the rights and obligations of legal entities, the procedure for exercising the state supervision (control) over observance of legislative requirements in the area of electronic trust services, as well as the legal and organizational principles of implementation of electronic identification.
- Law of Ukraine “On Electronic Documents and Electronic Document Flow” No. 851-IV as of 22 May 2003 (Law on Electronic Documents) – This Law discussed the organizational and legal principles of e-document flow and the use of e-documents. This Law discusses the framework for creating, sending, transmitting, receiving, storing, processing, using and destructing e-documents.
- Civil Code of Ukraine as of 16 January 2003 No. 435-IV (articles 205-207) – The Civil Code further elaborates on the allowance of electronic signatures. According to the paragraph 3 of Article 207 of the Civil Code of Ukraine, use of any graphic reproduction of handwritten signature in electronic form is possible if explicitly allowed under the law or if the parties have agreed to the use of such signatures in advance in written form, whereby samples of respective analogue of personal handwritten signatures have been provided by the parties.
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:
- Be created by means of cryptographic transformations of electronic data to which this signature is linked;
- be created with the use of the advanced electronic signature device and personal key uniquely linked to the signer;
- enable electronic identification of the signer;
- make it possible to detect violations of integrity of electronic data to which this signature is linked.
3. Qualified Electronic Signature – this type of electronic signature has the equivalent legal effect of a handwritten signature if it:
- complies with requirements established to advanced electronic signature;
- is created with the use of qualified electronic signature device (QESD);
- is based on qualified public key certificate from a qualified trust service provider (QTSP);
- establishes a clear connection with the signer;
- ensures sole control of the signer by the appropriate personal key.
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:
- Simple electronic signatures generally do not have legal effect in Ukraine. At the same time, use of any graphic reproduction of a handwritten signature in electronic form is possible if explicitly allowed under the law, or if the parties have agreed on the use of such signatures in advance in written form, whereby samples of the respective analogues of their personal handwritten signatures have been provided.
- Advanced electronic signatures generally do not have legal effect unless specifically addressed in sector rules (e.g. banking).
- Only qualified electronic signatures have the same legal effect as handwritten signatures on paper documents and have the presumption of enforceability.
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:
- certificates of inheritance
- documents which according to the legislation are executed only in one single original (e.g. passports, certificates of birth, different permissive documents, e.g. licenses allowing to conduct certain types of business activities, etc.)
- other documents as established by the legislation such HR documents which require paper form of retention or archiving (e.g. employment record books, personnel dossiers, protocols of meetings of committees on temporal disability, journals on registration of labor protection briefings, etc.)
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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