Ruling of the Constitutional Court of 6 October 2015 № 2443-O upon the petition of citizens Dinze and Sentsov

Legislation in question: Criminal Procedure Code, Art 38, Part 2(3) and Art 161, Part 3

Legal issue: The constitutionality of the rule prohibiting advocates to divulge the data collected within the preliminary inquest if the investigating agency does not give its consent.

Ratio decidendi: The provisions in question are not uncertain and do not violate the rights of the petitioners. The right to freedom of information may be restricted by a federal law on the basis of the principles of legal equality and proportionality. An ungrounded disclosure of the data collected within the preliminary inquest may not only cause the violation of rights and lawful interests of citizens, but also to seriously impede the criminal proceedings through, inter alia, the loss of the received evidence, and to create conditions for demolition of evidence by the suspect or the accused, and enable them to hide from the investigation and trial, to impede criminal proceedings. The unlicensed divulgence of data from the file of preliminary inquest, even if it was done by an advocate in the course of criminal defense of his client, may not be regarded as a lawful means of defending the rights of the suspect (or the accused). Still, those involved in criminal proceedings have the right to challenge the prohibition, imposed by an investigation agency, to communicate such data.

Dissenting opinion:
  • Not every divulgence is harmful to the secrecy of investigation, and the very secrecy of it is not unconditional. The divulgence of the data of preliminary inquest does not relate to formal offences, which are solely conditioned upon the violation of a prohibition. Therefore, the criminal liability of an advocate may not be invoked irrespective of whether the real harm has been caused to the preliminary inquest, the rights and lawful interests of the participants to criminal investigation. It also means the no one may be brought to criminal liability for the divulgence of the data of preliminary inquest unless the concrete harm is proved. 

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Subject area:
Court Proceedings criminal procedure