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Automatically translated version. May contain inaccuracies compared to the original.
🟥🟥 WHEN A PRIVATE CONVERSATION BECOMES A CRIME
Dear channel subscribers!
For your attention, a very interesting and even revolutionary separate opinion for our realities by Judge Arkadiy Bushchenko of the Cassation Criminal Court within the Supreme Court.
In June 2026 the Cassation Criminal Court upheld the conviction of a man to 5 years in prison for inciting national enmity, humiliating national honor and dignity (Art. 161 of the Criminal Code of Ukraine) and for justifying Russian aggression (Arts. 436-2 of the Criminal Code of Ukraine).
But the most interesting aspect of this case for us is not the decision itself, but Judge Arkadiy Bushchenko’s separate opinion.
Its central thesis essentially boils down to an old principle of Roman law:
#️⃣ Cogitationis poenam nemo patitur - no one bears punishment for thoughts.
This concerns statements made exclusively in private conversations in a car, with a spouse or a friend. They were not intended for public dissemination and became known to the state only as a result of covert investigative actions.
And this is where the fundamental question arises:
can the state punish a person for what they say privately if those words were not addressed to society?
The judge draws attention to an extremely dangerous boundary. If criminal law begins to punish conversations in a car, at home, or in the kitchen, we risk returning to practices in which the state controls not socially dangerous behavior but a person’s views and private utterances.
A separate question concerns what exactly constitutes “incitement” of enmity.
If the statements were not public, were not directed at an indeterminate circle of people, and in fact their unintended “audience” became the law enforcement officers who were conducting the surveillance, whom exactly could such words have been “inciting”?
And here we arrive at the most difficult point.
Even morally unacceptable, Ukrainophobic, or pro-Russian views of a person should not by themselves cancel fundamental principles of criminal law and the right to privacy.
Because human rights are tested not when we defend those we like.
They are tested when the law must protect those whose views disgust us.
Arkadiy Bushchenko’s human rights activity is well known to the legal community. And this separate opinion, in our view, demonstrates a very important thing: a change in professional status does not necessarily mean abandoning human-rights thinking.
From the channel’s editors.
We have repeatedly written critically about the state of the Ukrainian judiciary. In our view, a significant part of it is currently under enormous pressure and increasingly rarely shows a willingness to make decisions contrary to the expectations of the state machine.
🔴 We find it especially upsetting to observe the work of certain judges who themselves came to the bench from the Bar.
We have repeatedly criticized such cases, in particular in the practice of the High Anti-Corruption Court, when former lawyers, having already donned the judicial robe, in our opinion, do not ensure adequate protection of the fundamental professional rights of lawyers when deciding on the conduct of investigative and other procedural actions, including searches.
Sometimes it seems that along with the new position their own past as lawyers is forgotten — a time when the professional duty was to protect a person from excessive state interference, not to justify such interference.
But, as we see, there are other examples.
There are people who, having become judges, do not forget their human-rights past and the purpose of law: not only to allow the state to punish, but also to set limits the state must not cross.
That is why we must also speak about exceptions.
❗️ There remain judges in Ukraine who try to be Judges.
Even when their position is unpopular. Even when the majority disagrees with it. And especially when it concerns the boundary the state should not cross.
‼️ We recommend reading Arkadiy Bushchenko’s separate opinion in full:
https://reyestr.court.gov.ua/Review/137457530?utm_source=chatgpt.com
🌐 Protection of the rights of Ukraine’s lawyers
https://t.me/zahistadvokativ
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