A Judge’s Separate Opinion as a Methodological Indicator of Legal Certainty Problems in Article 436² of the Criminal Code of Ukraine

Article 436² was added to the Criminal Code of Ukraine amid the full-scale escalation of Russia’s armed aggression and the evident need to counter informational support for the aggressor through criminal law. Its application, however, has revealed insufficient legislative guidance for determining the limits of punishable conduct while respecting freedom of expression and private life. This is evident in cases involving statements addressed to a limited circle of persons, “likes”, and other minimal digital actions on social media. The study aims to determine the methodological significance of judges’ separate opinions for identifying legal-certainty problems in this provision. The methodology combines a systems approach, system-structural analysis, assessment of the provision as a normative model, and formal-logical, formal-legal, and comparative methods. The empirical basis of the study was separate opinions and judgments of the Cassation Criminal Court within the Supreme Court concerning the interpretation of the provision under study and related criminal-law provisions. The study shows that a separate opinion may indicate legal-certainty problems when incompatible interpretations emerge at the cassation level. The divergences concern the public nature of the conduct and its spatial and informational reach. Problems were also identified in assessing minimal digital actions and defining the limits of reliance on findings of semantic-textual linguistic examinations of speech. The communicative nature of the conduct partly explains these interrelated problems. Reform should clarify the criterion of public nature and, for producing materials, consider a special purpose of subsequent public dissemination, with regard to countering hostile propaganda and collaborationism, forms of communication, digital platforms, and related criminal-law prohibitions.