ABSTRACT

1 INTRODUCTION

This paper discusses the study of the legal nature and limits of applying part four of Article 296 of the Civil Code of Ukraine¹ in the context of public communication by law enforcement bodies regarding the course of a pre-trial investigation. The relevance of the topic is determined by the growing role of the state’s public communication in criminal proceedings, as well as by the risks of violating the presumption of innocence and individuals' non-pecuniary rights due to the premature disclosure of their personal data. The study focuses on court case No. 761/1004/20,² which illustrates a systemic conflict between the public’s right to receive information and an individual’s right to respect for honour, dignity, and private life.

Particular attention is paid to analysing the normative content of the blanket formula “in other cases provided by law” and its correlation with constitutional guarantees and the standards of the Convention for the Protection of Human Rights and Fundamental Freedoms.³ The study reveals the problem of the absence of clear legislative criteria defining the permissible limits of disclosing personal data within criminal proceedings, and also demonstrates the risk of substituting the court procedure with the formation of a public perception of a person’s guilt outside the legal proceedings framework. Yet, the research emphasises the difference in the legal nature of the state’s public communication and mass media activities, which requires applying different standards of lawfulness to them.

The study substantiated that part four of Article 296 of the Civil Code of Ukraine serves as a private-law mechanism to uphold the presumption of innocence and protect the individual from premature reputational stigmatisation. It is established that departure from the general rule prohibiting the disclosure of a name is possible exclusively where there exists a direct and specific legislative basis meeting the requirements of legal certainty. It is established that general provisions of laws regulating the activities of law enforcement bodies do not create such authority. The article reveals the need for normative clarification of the limits of the state’s public communication and for the development of uniform judicial approaches to ensure a balance between the right to information and the effective protection of human rights.

2 METHODOLOGY

Given the dispersed and fragmented nature of the legal regulation of personal nonpecuniary rights in national legislation, as well as the complex cross-sectoral nature of the issue under study, the methodological basis of this study is a systemic approach to interpreting legal norms. The method of systemic interpretation was chosen as the dominant one since it involves establishing the content of a legal norm by identifying its functional and structural connections with other legal norms and with the general principles of legal regulation. This approach is determined by the intrinsic coherence of law as a unified normative system, where an individual norm cannot be properly understood outside the context of the relevant body of law.

Within the framework of this study, systemic interpretation is applied not in isolation but as part of a consistent algorithm for interpreting legal norms that include linguistic, logical, systemic, and teleological interpretations. This sequence enables the shift from a formal-textual understanding of a legal norm to a clarification of its content in light of its place in the legal system and its purpose. In this context, systemic interpretation serves as the central link, ensuring the consistency of the meaning of part four, Article 296 of the Civil Code of Ukraine, with constitutional guarantees, the provisions of related branches of law, and international legal standards.

The application of the systemic method necessitates a comprehensive analysis of normative acts at different hierarchical levels, in particular, the provisions of the Constitution of Ukraine, the Civil Code of Ukraine, criminal procedural legislation, as well as special laws regulating the activities of law enforcement bodies. At the same time, the study is not limited to formal normative material but also encompasses case law, which serves to concretise and develop legal norms.

An important component of the methodology is the analysis of the factual circumstances of case No. 761/1004/20, which is treated as a practical case study to test the selected interpretative approach. The materials in this case make it possible to verify the relevance and practical effectiveness of the formulated theoretical conclusions and to ensure a connection between abstract legal constructions and their implementation in law enforcement practice.

Thus, the study methodology combines systemic interpretation as the dominant instrument with the comprehensive use of other interpretative approaches, thereby ensuring the integral and coherent disclosure of the meaning of the legal norm under consideration.

3 NORMATIVE FRAMEWORK OF THE STUDY

Given that the subject of this study is the interpretation of the general norm specified in part four, Article 296 of the Civil Code of Ukraine, it is appropriate to reproduce the provisions of this part four only in full:

“Article 296. Right to Use One’s Name

…4. The name of a natural person who has been detained, is suspected or accused of committing a criminal offence, or of a person who has committed an administrative offence, may be used (disclosed) only after a guilty verdict has become effective or a decision in a case concerning an administrative offence has been issued, as well as in other cases provided by law. …”⁴

This approach is determined by the need to ensure a holistic understanding of the norm's content, structure, and internal logic, which is fundamental to correctly specifying the limits of applying the phrase “in other cases provided by law”. The reproduction of the norm in full enables the avoidance of fragmentary analysis and also creates an appropriate context for further examination of its normative content, functional purpose, and relationship with other provisions of national legislation and constitutional guarantees.

4 FACTS OF THE CASE

The facts of case No. 761/1004/20⁵ are even more interesting in light of the above-cited article of the Civil Code of Ukraine. The dispute, which became the subject of court consideration and, at the time of writing this paper, remains pending before the cassation instance, arose from a claim brought by natural persons against the Ministry of Internal Affairs of Ukraine and against broadcasting organisations as entities engaged in the mass dissemination of information. It constitutes a complex dispute concerning the protection of personal non-pecuniary rights, arising from the public disclosure by law enforcement bodies of information about the course of the pre-trial investigation in a high-profile criminal case and its subsequent retransmission by the mass media.

The factual background of the dispute is based on the fact that in December 2019, during an official briefing broadcast by nationwide television channels, officials of the Ministry of Internal Affairs of Ukraine disclosed information concerning the plaintiffs’ involvement in serious crimes, in particular, the murder of journalist Pavlo Sheremet and the attempted murder of another person. This information was accompanied by the display of the plaintiffs’ photographs and personal data, as well as visually and verbally framed messages

that, by their content, created the impression that their participation in the relevant criminal offences had been established.

The said information was not only disseminated once during the briefing, but was also reproduced in subsequent television programmes, which significantly expanded the audience reached and extended the duration of its impact.

In substantiating their claim, the plaintiffs proceeded from the assumption that such form and content of dissemination effectively equated them with persons guilty of committing crimes, which, in their view, constituted a violation of the constitutional principle of the presumption of innocence, as well as damage to their honour, dignity, and business reputation.

A separate and independent section of arguments concerned the allegation of unlawfulness in disclosing their names and photographs in the absence of a guilty verdict, which, according to the plaintiffs, violated their personal non-pecuniary rights guaranteed by civil legislation, in particular the right to a name and the right to one’s image. In this regard, they asked the court not only to declare the disseminated information false and hold that it violated their rights, but also to require the defendants to refute it in a manner analogous to its dissemination, and to cease further dissemination of the relevant materials by removing them from information resources.

By contrast, the defendants built their legal position on the argument that the contested information did not contain categorical assertions of the plaintiffs’ guilt, but reflected exclusively interim results of the pre-trial investigation, which had been communicated to the public because of the significant public interest in the relevant criminal case. Thus, part two of Article 9 of the Law of Ukraine “On the National Police” provides that the police shall ensure the regular informing state authorities, local self-government bodies, and the public about their activities in the area of protection and defence of human rights and freedoms, combating crime, and ensuring public safety and order.⁶

Special emphasis was set on the fact that the information was disseminated within the powers of the law enforcement body, in compliance with the requirements of criminal procedural law, in particular, where permission had been granted to disclose pre-trial investigation data, and that statements made by officials could be regarded as value judgements, opinions or as communication of the investigative version of events, rather than as establishing the fact of guilt.

The courts of first and appellate instance, in dismissing the claim, proceeded on the basis that the disputed information had been disclosed in the context of informing the public about the course of the investigation and did not contain unequivocal statements regarding

the plaintiffs’ guilt. Therefore, it did not violate the presumption of innocence. Yet, the appellate court acknowledged that the disclosure of the plaintiffs’ names and photographs had occurred in breach of the requirements for the protection of personal data. However, it concluded that this violation could not be remedied by instituting a refutation of false information, since the latter applies exclusively to the spread of false factual information, whereas a violation of the right to privacy entails other civil-law remedies.

The cassation review of the case revealed significant issues with law enforcement regarding the proper classification of the information disseminated and the determination of the limits of permissible public communication by law enforcement bodies. The Supreme Court, setting aside the appellate decision in part and remitting the case for a new hearing, pointed to the need of examining whether the statements of the officials had the nature of factual assertions of guilt, whether they complied with the criteria of caution and restraint formulated in the case law of the European Court of Human Rights, and whether the disclosure of the plaintiffs’ personal data in the absence of a guilty verdict had been lawful. However, following the new appellate review, the court again found no grounds to satisfy the claim, maintaining its approach of classifying the information as not containing assertions of guilt.

In the subsequent proceedings, the case took on special importance as the Supreme Court received a request regarding the possibility and limits of using civil-law remedies to refute information concerning a person’s involvement in a criminal offence. The panel of the Civil Cassation Court raised the issue of the need to depart from the previously formulated legal position of the Supreme Court of Ukraine, according to which such statements may be recognised as false and violating person’s honour and dignity, proposing instead an approach under which disputes aimed at denying the fact of involvement in a crime or a person’s procedural status in criminal proceedings should not be examined within the framework of civil proceedings.

Therefore, the conceptual core of this case lies in determining the limits of permissible state interference in the area of a person’s personal non-pecuniary rights through public communication about criminal proceedings, as well as in clarifying whether the institution of protection of honour, dignity, and business reputation may serve as a procedural mechanism to refute public statements on the involvement in a crime. In a broader context, the case reflects a collision between the principle of the presumption of innocence, the right to respect for private life and reputation, on the one hand, and the freedom of expression and the public’s right to receive information, on the other. These require systemic reconciliation in light of the standards of the Convention for the Protection of Human Rights and Fundamental Freedoms.

In the context of the above-mentioned, the following issues of legal application were essentially put before the Supreme Court:

1. How should the phrase “and in other cases provided by law,” contained in part four of Article 296 of the Civil Code of Ukraine, be interpreted from the viewpoint of legislative drafting?
2. Does the phrase “and in other cases provided by law,” contained in part four of Article 296 of the Civil Code of Ukraine, permit the application to the disputed legal relations of the provisions of the Laws of Ukraine “On the National Police,” “On the National Anti-Corruption Bureau of Ukraine,” and “On the Security Service of Ukraine,” etc., and allow them to be regarded as special laws granting state authorities the right to use (disclose) the name of a natural person suspected or accused of committing a criminal offence to inform about their activities?
3. Is it permissible to distinguish between subjects that may use (disclose) the name of a natural person suspected or accused of committing a criminal offence by dividing them into certain groups, in particular, journalists and public bodies, and, depending on this, to assess the lawfulness of the actions carried out by the subject in relation to using (disclosing) the name of a natural person suspected or accused of committing a criminal offence?

It is the sequence of these questions that structures this article.

5 INTERPRETATION OF STATUTORY EXCEPTIONS

Part four, Article 296 of the Civil Code of Ukraine, from the standpoint of contemporary legal theory and human rights protection standards, should be regarded as a private-law mechanism for the preventive restraint of state power against the premature stigmatisation of an individual’s reputation, primarily in the field of criminal prosecution. That is, actually in the area where the risk of society prematurely convincing a person’s involvement in an offence through public communication by state authorities is the highest.

The normative construction of this provision, which permits the use of the name of a detained, suspected, or accused person only after a guilty verdict has become effective or after a ruling in a case on an administrative offence has been issued, and in other cases provided by law, should be interpreted as an exception to the general rule based on constitutional guarantees: the presumption of innocence (Article 62 of the Constitution of Ukraine), respect for a person’s honour, dignity, and reputation (Articles 3, 28, 34, and 68 of the Constitution of Ukraine), and the right to non-interference in personal and family life (Article 32 of the Constitution of Ukraine), as components of the principle of the rule

of law envisaged in Article 8 of the Constitution of Ukraine.⁷ This exception is narrow in content and may be applied only if there is a clear legislative basis.

In other words, the point here is the balance between two legitimate interests. On the one hand, there is the protection of personal and family life, honour, and dignity. On the other hand, there is a need for the state to inform society, ensure public safety, and guarantee the effectiveness of the criminal justice system. In a state governed by the rule of law, this balance cannot be established by administrative expediency or an expansive interpretation of the general powers of public authorities. It is achieved exclusively by law, which defines the limits of interference according to the criteria of accessibility, foreseeability, and legal certainty.⁸

It is this requirement that constitutes the substance of the rule of law.

As Lon L. Fuller emphasised, law presupposes congruence between the proclaimed rule and the practice of its application by officials, which excludes arbitrary deviations from established procedures.⁹ Similarly, Joseph Raz noted that the rule of law requires accessibility, foreseeability, and clarity of legal norms as a precondition for the autonomous planning of an individual’s conduct.¹⁰ Jeremy Waldron, in turn, argues that it is the procedural form of law and its definiteness that ensures respect for human dignity as the status of an equal participant in the legal order.¹¹

Therefore, the provisions of part four of Article 296 of the Civil Code of Ukraine should be understood as an instrument for ensuring legality and legal certainty at a level that does not permit the substitution of the court procedure by public condemnation prior to establishing the guilt as prescribed by law.

As regards the legislative significance of the phrase “in other cases provided by law,” which constitutes a general blanket norm, legislative technique does not endow it with the properties of a free zone of discretion for the law-applying subject. On the contrary.

This reference signals that departure from the general rule is possible only where there is direct and specific legislative regulation¹², where the legislature has clearly defined the grounds, limits, and manner of such interference.¹³ This concerns, in particular:

• the establishment of a legitimate purpose of disclosure (for example, searching for a person, preventing danger, or protecting victims);
• proof of the need for personalised identification rather than anonymised information;
• determination of the competent subject and the procedure for adopting the relevant decision; and
• the introduction of safeguards preventing the formation of a public perception of a person’s guilt prior to any court decision.

In constitutional doctrine, such requirements may be designated as the criterion of the “quality of law.”¹⁴.

In general, where exceptions are to be established in spheres involving intense interference with human rights, the law, according to Aharon Barak,¹⁵ must delineate the limits of the state’s discretion with sufficient clarity so as to exclude arbitrary exercise of power. Robert Alexy demonstrates that the more intensive the interference, the more convincing the justification it requires.¹⁶

For this very reason, the phrase “in other cases provided by law” should be interpreted as permitting the application of lex specialis exclusively where there is a direct legislative provision. It cannot be regarded as an unconditional general authorisation to disclose the

name of a natural person for reasons of informing the public or for the reporting purposes of state authorities. Otherwise, the blanket formula would effectively serve to circumvent the restriction established by Article 296 of the Civil Code of Ukraine, which is incompatible with the requirements of legal certainty and the prohibition of arbitrary state interference, as components of the principle of the rule of law.

6 SPECIFIC STATUTORY BASIS

In light of the above considerations, a negative answer to the second question follows naturally.

The provisions of the Laws of Ukraine “On the National Police,” “On the National AntiCorruption Bureau of Ukraine,” and “On the Security Service of Ukraine,” which provide for informing the public about the activities of these bodies, are organisational in nature and aim at ensuring openness, accountability, and public trust in state power.¹⁷ They only define the general principles of communication policies concerning the activities of the authority, but do not establish special rules on using (disclosing) personal data of the participants in criminal proceedings. Hence, such provisions may not be regarded as legal grounds for disclosing the name of a suspect or an accused person, contrary to the limitations set out in Article 296 of the Civil Code of Ukraine.

The domestic legal doctrine consistently emphasises that the competence of a subject vested with public authority must be directly, clearly, and unambiguously defined by law. General functions, tasks, or areas of activity of a public authority cannot in themselves create a specific power to interfere with the domain of human rights or restrict them, because the legal certainty of the limits of state power, enshrined, inter alia, in the provisions of Article 19 of the Constitution of Ukraine, constitutes a key requirement of the principle of the rule of law.¹⁸

The foregoing demonstrates that entrusting a law enforcement body with the duty to inform the public does not in itself mean granting it the right to disclose personal data in a manner capable of shaping a public perception of a person’s guilt prior to rendering a guilty verdict.

From the criminal procedural perspective, the requirements of caution are even stricter, since information relating to the pre-trial investigation falls within the field of special safeguards aimed at ensuring a balance between the effectiveness of the investigation, the rights of the suspect, and the interests of victims. As emphasised in the contemporary Ukrainian procedural studies, the disclosure of such information is permissible only within

the limits expressly established by law, taking into account the presumption of innocence and the inadmissibility of causing harm to a person’s reputation.¹⁹

It is obvious that public communication by law enforcement bodies concerning criminal proceedings is a high-risk area for violating the presumption of innocence, since it can influence public perception of a person outside the court procedure.²⁰ Accordingly, information may not be disclosed unless there is a special legal basis, with the purpose, limits, and procedural safeguards clearly defined,²¹ in order to prevent institutional temptations of the state to influence public perception of a particular criminal proceeding.

7 DIFFERENTIATION OF LEGAL STANDARDS

The third issue, concerning the permissibility of distinguishing between the subjects disseminating information, in particular, journalists and state authorities, is relatively easily resolved from the theoretical and legal perspective. This differentiation is not only permissible but conceptually necessary, since the freedom of expression of private media and official communication by the state have different legal natures.

Journalistic activity operates within the paradigm of freedom of speech, public interest and public scrutiny of government, whereas the activities of state authorities are governed by the principles of legality, institutional neutrality and positive obligations to secure and protect human rights. In the case law of the European Court of Human Rights, this distinction is articulated through the concept of the press as a “public watchdog”. In Bladet Tromsø and Stensaas v. Norway,²² Pedersen and Baadsgaard v. Denmark,²³ Stoll v. Switzerland,²⁴ Magyar

Helsinki Bizottság v. Hungary²⁵ and Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina,²⁶ the Court consistently referred to the fact that the press, journalists and other actors involved in information dissemination on matters of public interest perform a special democratic function, and that State interference with such activity, therefore, requires truly convincing justification.

In the liberal legal tradition, freedom of speech is regarded as a key instrument of democratic control over public power.²⁷ Objectively, it is believed that public authorities, by using information resources and the authority of the State, are capable of creating an asymmetric impact on an individual’s legal position. Accordingly, freedom of public debate should be understood as primarily seeking to restrain State power, rather than to enable its informational dominance. This approach is consistent with the position of the ECtHR in Castells v. Spain,²⁸ where the Court emphasised that the limits of permissible criticism are wider with regard to the Government than in relation to a private individual or even a politician, since in a democratic society the actions or omissions of the Government must be subject to close scrutiny not only by Parliament and the courts, but also by the public. The same logic is reflected in Vides Aizsardzības Klubs v. Latvia,²⁹ Dyuldin and Kislov v. Russia,³⁰ Radio Twist a.s. v. Slovakia,³¹ Romanenko and Others v. Russia,³² Toranzo Gomez v. Spain³³ and Lombardo and Others v. Malta,³⁴ where the Court confirmed that State authorities, public officials and institutions performing public functions must accept wider limits of acceptable criticism.

Consequently, the State cannot be regarded as an ordinary speaker, since its statements have a different legitimating force and different legal consequences for their addressees. Provided that a journalist, even when mistaken in certain details, acts in good faith, on a sufficient factual basis and aiming at informing the public of a matter of public interest, the State, by contrast, does not enjoy an analogous freedom of editorial discretion. Its communications are not an expression of private autonomy, but a form of exercising public power. Accordingly, State communication must be assessed not only against the criteria governing the permissibility of expression under Article 10 of the Convention, but also against the requirements of legality, proportionality, institutional restraint, accuracy and the prevention of arbitrary interference with individual rights.

In the context of these considerations, Jeremy Waldron’s position is apposite: he noted that law, as a form of governance, addresses the human being not as an object of administrative influence, but as a rational participant in the legal order, capable of understanding the grounds for State decisions, responding to them with reasoned argument, and relating individual legal prescriptions to the coherent and systemic logic of legal regulation as a whole; this constitutes one of the ways the law shows respect for human dignity.³⁵

It follows that, where a journalist informs the public in good faith about an event of public interest, the State is required to act according to different standards. Its communications must be limited to the purpose that directly derives from law, for example, the search for a person, the prevention of danger, informing the population of risks, or ensuring the proper functioning of justice. They must be neutral, factually accurate, minimally necessary for both content and form, and adopted through a procedure that provides for internal control and the accountability of public officials. In this respect, the Court’s approaches in Bédat v. Switzerland,³⁶ Brisc v. Romania,³⁷ Tourancheau and July v. France³⁸ and Dupuis and Others v. France³⁹ are particularly illustrative: in those cases, the Court highlighted the risks of violating the secrecy of the investigation, the presumption of innocence, the private life of participants in criminal proceedings, and the proper administration of justice.

It is especially important that the ECtHR case law does not identify the status of a person subject to criminal proceedings with that of a public figure. The very fact of a criminal investigation does not deprive a person of the right to respect for private life, reputation and the presumption of innocence. In Bédat v. Switzerland, the ECtHR emphasised that

information from the case file in criminal proceedings may require the highest level of protection, and that the State is required not only to refrain from its unlawful disclosure but also to ensure the effective protection of the accused person’s rights. Therefore, an official communication by a state authority, which virtually shapes the public perception of a person’s guilt before a court judgement, or which excessively personalises negative information, may acquire the features of a de facto punishment without trial, which is incompatible with the presumption of innocence and the right to respect for private and family life.

At the same time, this logic does not mean that journalists are released from their professional duties. The ECtHR has consistently emphasised that freedom of the press entails “duties and responsibilities”. However, these duties are of a different nature from those incumbent on the State. For a journalist, the key requirements are good faith, the availability of sufficient facts, the distinction between facts and value judgements, the proper use of sources, and a contribution to debate on matters of public interest. By contrast, for a state authority, the determining criteria include competence, a lawful aim, procedural discipline, neutrality, and the prevention of abuse of State authority.

Thus, the differentiation of standards applicable to journalists and to state authorities is not a manifestation of inequality or double standards; on the contrary, it is a necessary condition for ensuring the rule of law. Freedom of speech serves to control public power, whereas public power itself, when engaging in public communication, must act with heightened restraint, procedural discipline, and respect for human dignity. It is for this reason that the standards developed by the ECtHR for the protection of journalistic activity cannot be mechanically transposed to the official communication of State authorities: private media exercise freedom of expression, while the State exercises public competence.

8 CONCLUSIONS

The phrase “in other cases provided by law” should be interpreted as permitting the application of lex specialis exclusively where there is a direct legislative provision.

The phrase “and in other cases provided by law,” contained in part four, Article 296 of the Civil Code of Ukraine, does not enable to apply it to the disputed legal relations among the provisions of the Laws of Ukraine “On the National Police,” “On the National AntiCorruption Bureau of Ukraine,” and “On the Security Service of Ukraine,” etc., and to regard them as special laws granting state authorities the right to use (disclose) the name of a natural person suspected or accused of committing a criminal offence for the purpose of informing about their activities, due to the absence of direct legislative regulation.

The differentiation of the subjects entitled to use (disclose) the name of a natural person suspected or accused of committing a criminal offence into certain groups, in particular journalists and state bodies, is not only permissible, but also necessary.

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