Criminal procedural risks of the draft Civil code of Ukraine

The adoption at first reading of the draft of the new Civil Code of Ukraine necessitates an examination of the provisions of the future legislation that regulate cross‑sectoral institutions and employ cross sectoral terminology. Since the legal system functions properly only in the absence of both intra‑sectoral and inter‑sectoral conflicts – because it is precisely the consistency and non‑contradiction of legal norms that guarantee the effectiveness of legal regulation and the stability of the legal order – the author analyses those provisions of the draft Civil Code that are potentially connected with criminal procedural legislation. Given that one of the key aspects of law enforcement is the terminological compatibility of the applicable legislation, the article examines the concept of «correspondence», which has an intersectoral character. It is noted that Article 333 of the draft Civil Code proposes an excessively detailed list of types of correspondence. It is emphasised that the rapid evolution of technologies, the use of everyday and unstable terminology, as well as the inclusion of outdated concepts (such as «telegram»), create a risk of normative incompleteness and, subsequently, potential lag of legislation behind technological progress. Special attention is given to the use of the term «truth» in Articles 332, 333, and 352 of the draft Civil Code in the context of access to correspondence or personal notes. It is demonstrated that such terminology contradicts the conceptual foundations of the 2012 Criminal Procedure Code of Ukraine, which deliberately abandoned the Soviet doctrine of «objective truth» and is based on the principles of adversarial proceedings, dispositiveness, the standard of proof  «beyond a reasonable doubt», and the priority of due legal procedure. The article also analyses Article 335 of the draft Civil Code, which reproduces the constitutional model of the right to the inviolability of the home, yet simultaneously transfers into civil legislation existing problems related to the imperfections of normative regulation. It also creates a conflict, particularly by ignoring an independent ground for entering a dwelling or other property – voluntary consent of the possessor – provided for in Article 233 of the Criminal Procedure Code, the legitimacy and importance of which have been repeatedly confirmed by the Supreme Court. Attention is also given to Part 3 of Article 1434 of the draft Civil Code, which regulates liability for damage caused by unlawful decisions, actions, or omissions of bodies conducting operational‑search activities, pre‑trial investigation, the prosecution, or the court. It is emphasised that although the draft provision generally reproduces the approach of current legislation, its wording significantly expands the grounds for refusing compensation by supplementing self‑incrimination with the category of «other knowingly false statements», thereby broadening the range of conduct that may be interpreted as obstructing the establishment of the circumstances of the case. It is noted that such a construction creates tension with the constitutional principle of full and unconditional compensation for damage caused by unlawful decisions of state authorities, as well as with the provisions of the special Law of Ukraine of 1 December 1994. The article highlights the doctrinal problem of «procedural fault» and the extremely fine line between self‑incrimination, false testimony, and the exercise of the right to defence. It is shown that in criminal proceedings, inaccurate or incomplete statements often constitute an element of a defence strategy rather than a deliberate obstruction of fact‑finding. It is emphasised that the imperative nature of the provision fails to take into account situations in which such statements result from pressure, coercion, or improper treatment, which contradicts constitutional guarantees and the general principles of state tort liability.

legal norms; criminal procedural legislation; legal terminology; interpretation of legal norms; secrecy of correspondence; truth in criminal proceedings; right to the inviolability of the home; liability for damage caused by unlawful decisions, actions or omissions of bodies conducting pre-trial investigation, prosecution or court; state tort liability; right to a fair trial