CONFIDENTIALITY OF PRE-TRIAL INVESTIGATION AND FREEDOM OF EXPRESSION (ON THE EXAMPLE OF THE DECISION OF THE ECHR “SELLAMI V. FRANCE”)

Abstract

The article is devoted to the study of the problem of the correlation between the confidentiality of pre-trial investigation and the freedom of expression. Based on the analysis of judicial practice of doctrinal approaches to the concepts of “confidentiality of pre-trial investigation”, “information of pre-trial investigation”, interpretation of Art. 222 of the Criminal Procedure Code of Ukraine, it has been proven that currently it is impossible to talk about a clear understanding of the concept of “information of pre-trial investigation” in the aspect of their disclosure. The scope of this information should be clarified at the regulatory level (based on the fact that it is information that is held by inquiring officer, investigator, prosecutor), giving legal certainty to the discretionary authority of the investigator, prosecutor to resolve issues related to the disclosure of information of pre-trial investigation. Such information should include information that contains all information protected by law, starting from the moment of receiving a statement or notification of a criminal offense, as well as information that cannot be obtained through the mechanisms of citizens’ appeals and access to public information, including publicly available documents, except for information, which were examined in open court hearing. Taking into account the standards of investigation effectiveness developed by the practice of the ECHR, the correlation between the confidentiality of the pre-trial investigation and the freedom of expression in the context of journalistic activity is considered. Taking into account the decisions of the ECHR “Sellami v. France”, “Bédat v. Switzerland” analyzed the correlation between the disclosure of confidential information and compliance with Art. 10 of the Convention on the Protection of Human Rights and Fundamental Freedoms. It is argued that the ECHR confirmed the legitimate purpose of the confidentiality of the pre-trial investigation and the possibility of applying restrictive measures regarding its disclosure in the decision “Bédat v. Switzerland”, “Sellami v. France”. However, in the aspect of national legislation, there may be questions in the case of an appeal to the ECHR (and not only in relation to the activities of journalists, but also in the case of a conviction under Article 387 of the Criminal Code of Ukraine) in the aspect of provision by law in the sense that there is no clear understanding of the scope of the confidentiality of the pre-trial investigation, and the modes of dissemination of information of pre-trial investigation are not clearly identified in the correlation of substantive and procedural legislation.