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This is an Open Access article, distributed under the terms 
of the Creative Commons Attribution CC BY 4.0

1 Yaroslav Mudryi National Law University, Ukraine 
E-mail: anlapkin@gmail.com
ORCID: https://orcid.org/0000-0002-3240-6377
2 Аcademician Stashis Scientific Research Institute for the Study of Crime Problems 
of the National Academy of Legal Sciences of Ukraine, Ukraine (corresponding author)
E-mail: evteeva.dar@gmail.com
ORCID: https://orcid.org/0000-0003-0593-1632
3 Аcademician Stashis Scientific Research Institute for The Study of Crime Problems 
of the National Academy of Legal Sciences of Ukraine, Ukraine 
E-mail: daria_kukovinez@ukr.net
ORCID: https://orcid.org/0000-0002-8417-5873

DOI: https://doi.org/10.30525/2256-0742/2024-10-5-234-247

ECONOMIC ASPECT OF CRIMINAL LAW COUNTERACTION  
TO JUSTIFICATION OF ARMED AGGRESSION AGAINST UKRAINE: 
RISKS FOR THE STATE BUDGET IN THE LIGHT OF THE PRACTICE 

OF THE EUROPEAN COURT OF HUMAN RIGHTS*

Andrii Lapkin1, Daryna Yevtieieva2, Daria Kukovynets3 

Abstract. Research subject. The scientific article analyses the economic aspect of criminal law enforcement in 
the context of the Russian Federation's armed aggression against Ukraine and associated actions. It examines 
the potential financial implications for the Ukrainian state budget in relation to the settlement of compensation 
claims arising from violations of the Convention for the Protection of Human Rights and Fundamental Freedoms 
of 1950 (hereinafter referred to as the Convention). The criminal law is employed to combat justification, as well as 
to recognise the legitimacy of the denial of the armed aggression of the Russian Federation against Ukraine and 
the glorification of its participants. This is achieved through the application of Art. 4362 of the Criminal Code of 
Ukraine (henceforth – CCU). In this regard, the objective of the present study is to predict the potential financial 
compensation that may be granted by the European Court of Human Rights (hereinafter – ECHR) in such cases, and 
the ensuing financial implications for the state budget of Ukraine, which will assume the financial responsibility 
for the relevant expenditures. In order to achieve this objective, the compliance of Art. 4362 of the CCU by the 
provisions of Articles 3, 5, 8 and 10 of the Convention and the practice of the ECHR was checked. Мaterials and 
methods. The empirical basis of the study was as follows: (1) statistical data on Ukraine's participation as a defendant 
in the ECHR and the expenses incurred by it for the compensation of damages in 2019-2023; (2) approximately 
900 verdicts of Ukrainian courts under Article 4362 of the Criminal Code; (3) the survey results of 4015 law 
enforcement officers of Ukraine on countering the glorification of the Russian armed aggression in Ukraine;  
(4) the survey results of 16 Ukrainian judges on countering the glorification of the Russian armed aggression in 
Ukraine; (5) 46 ECHR judgments. The following methodological approaches were employed: dialectical, inductive 
and deductive reasoning, analysis and synthesis, and economic analysis. Results. It has been determined that the 
criminal law provisions stipulated in Article 4362 of the CCU, by virtue of their subject matter and nature, give rise to 
the potential for restrictions on the rights to privacy (Article 8), freedom of speech and expression (Article 10), and, 
in a indirect capacity, the prohibition of torture (Article 3) and the liberty and security of the person (Article 5) as 
guaranteed by the Convention. Consequently, this may result in a negative economic effect, manifesting as potential 
expenditures from the state budget for the purpose of compensating individuals who have been subjected to 
violations of the aforementioned Convention provisions. Based on the average amount of compensation in cases 
against Ukraine of 13,190.8 EUR and the number of convictions under Article 4362 of the CCU, as well as taking into 

* The material was prepared for the implementation of the project "Criminal law and criminological principles of counteracting the 
glorification of Russia's armed aggression in Ukraine" (registration number 2022.01/0060), which is implemented thanks to the grant support 
of the National Research Foundation of Ukraine.

The content of this material may not coincide with the views of the National Research Foundation of Ukraine and is the exclusive 
responsibility of the Аcademician Stashis Scientific Research Institute for The Study of Crime Problems of the National Academy of Legal 
Sciences of Ukraine.



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account the factors that may affect the number of applications to the ECHR by persons convicted under this Article, 
an approximate total amount of possible satisfaction was calculated in the range of 264,000 EUR - 923,000 EUR. At 
the same time, this amount could reach up to 18 million EUR, assuming that all convicted persons bring an action.

Keywords: economic losses; state budget; price of compensation; justification, recognition of legitimacy, denial of 
armed aggression; glorification of participants in armed aggression; criminal liability; Convention for the Protection 
of Human Rights and Fundamental Freedoms; case law of the European Court of Human Rights.

JEL Classification: К14, K42

1. Іntroduction
The use of criminal law measures to combat 

certain socially dangerous phenomena requires 
a careful calculation of the economic impact, in 
particular in terms of the costs of conducting criminal  
proceedings, keeping convicted persons in custody, 
as well as the possible payment of compensation  
from the state budget in the event of violations 
committed in this case.

As a rule, such a calculation should be made at the 
stage of drafting a law on criminalisation of relevant 
actions. At the same time, under the conditions of 
a full-scale invasion of the Russian Federation into 
Ukraine, the Ukrainian legislator hastily and without 
making economic calculations adopted a number 
of laws aimed at countering Russian aggression and  
fighting its supporters, especially in the information 
sphere. One of these laws (The Law of Ukraine  
"On Amendments to Certain Legislative Acts of  
Ukraine to Strengthen Criminal Liability for Production 
and Distribution of Prohibited Information Products", 
2022) introduced into the Criminal Code of Ukraine 
(The Criminal Code of Ukraine, 2001) (hereinafter – 
CCU) criminal liability for a number of manifestations 
contributing to such aggression. In particular, it 
was supplemented by Article 4362 "Justification, 
recognition as lawful, denial of the armed aggression 
of the Russian Federation against Ukraine, glorification  
of its participants" (Table 1).

This offence has been included by the Ukrainian 
legislator in Chapter XX of the CCU "Criminal Offenses 
Against Peace, Human Security and International 
Law and Order" together with such crimes as waging 
aggressive war, violation of the laws and customs of  
war, use of weapons of mass destruction, genocide, etc.

At the same time, in the explanatory note to the 
corresponding draft law, within the framework of the 
financial and economic justification, it was pointed  
out that the implementation of the provisions of  
the draft law will not require any additional budgetary 
funds, and within the framework of the forecast  
of socio-economic and other consequences of 
the adoption of the draft law, attention was drawn 
exclusively to the fact that it will allow strengthening 
effective countermeasures against hybrid information 
warfare, protection of state sovereignty and territorial 
integrity of Ukraine, will contribute to strengthening 
patriotic sentiments (Explanatory note to the Draft  
Law of Ukraine "On Amendments to Certain  
Legislative Acts of Ukraine (Concerning Strengthening 
of Criminal Liability for Production and Distribution 
of Prohibited Information Products)", 2021). 
Consequently, the legislator did not consider the 
potential adverse economic implications of the 
implementation of the proposed legislation.

In practice, Article 4362 of the CCU has been 
applied quite actively – for more than 2.5 years of its 
existence, more than 3,500 criminal offences have been 

Table 1
Content of Article 4362 of the CCU

Disposition Sanction 
Part 1:
– Justification, recognition of the legitimacy, denial of the armed aggression of the Russian 
Federation against Ukraine, which began in 2014.
– Justification, recognition as lawful, denial of the temporary occupation of part of the territory 
of Ukraine.
– Glorification of the persons who carried out the armed aggression of the Russian Federation 
against Ukraine, which began in 2014, and other persons who contributed 
to its implementation (the full list is specified in the disposition of this provision).

Correctional labour for up to two years or 
probation for up to three years, 
or imprisonment for up to three years.

Part 2: 
Production, distribution of relevant materials containing information specified in part 1 
of this Article.

Restriction of liberty for up to five years 
or imprisonment for the same term, 
with or without confiscation of property.

Рart 3: 
Acts provided for in paragraphs 1 or 2 of this Article, committed by an official, or committed 
repeatedly, or by an organised group, or with the use of mass media.

Imprisonment for a term of five to eight 
years with or without confiscation 
of property.



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registered (Office of the Prosecutor General, n.d.) and 
about 1,000 sentences have been passed (Unified State  
Register of Court Decisions, n.d.). Such active 
implementation of this provision obviously has 
a significant economic effect in the form of expenditures 
from the state budget of Ukraine, which include the 
following:
1) Direct costs of organising and conducting pre-trial 
investigations and trials of relevant criminal offences 
(including the salaries of investigators, prosecutors, 
judges and other employees of pre-trial investigation 
bodies, prosecutors and courts; costs of free legal aid 
to suspects and accused persons; costs of forensic 
examinations; costs of detention of convicts in 
penitentiary institutions or supervision of convicts 
released on probation, and so forth);
2) potential expenses for damages (compensation) 
to those persons who were unreasonably brought to 
criminal responsibility under Art. 4362 of the CCU 
and/or whose rights guaranteed by the Convention 
for the Protection of Human Rights and Fundamental 
Freedoms (Council of Europe, 1950) (hereinafter – the 
Convention) were limited as a result of its application.

The analysis of these sentences, as well as a survey 
of judges and law enforcement officials in Ukraine, 
showed that the application of this norm does not 
take the specified economic effect into account at all.  
Such a situation is typical of the Ukrainian criminal 
justice system, which, guided by the principles  
of formal legality and publicity, does not provide  
for the discretion of law enforcement officers to bring 
criminal charges depending on considerations of 
economic expediency.

At the same time, this criminal prohibition entails 
restrictions on certain rights and freedoms enshrined 
in the Convention, in particular Article 5 (right to 
liberty and security of person), Article 3 (prohibition 
of torture), Article 8 (right to respect for private and  
family life) and Article 10 (freedom of expression).

Since the ECHR establishes the violation of the 
rights and freedoms guaranteed by the Convention 
and provides for compensation to applicants from 
the state budget, the price of any fair satisfaction  
must be determined. In view of the state budget deficit 
in Ukraine under martial law, this issue becomes 
even more relevant, as existing and potential public 
expenditures need to be carefully calculated.

The purpose of the study is to make a forecast of 
the possible price of satisfaction that may be awarded 
by the ECHR in such cases and the losses to the state 
budget of Ukraine, which will bear the burden of the 
corresponding payments.

For this purpose, it is necessary to check the 
admissibility of such restrictions and the compliance 
of the provisions of Article 4362 of the CCU with the 
provisions of the Convention and the ECHR in the 
following aspects:

1) Given that Article 4362 of the CCU inherently  
restricts the freedom of expression and the right to 
respect for private life, it is necessary to establish 
whether it creates a risk of violation of Articles 8 and 
10 of the Convention based on the ECHR criteria for 
justified interference with the relevant rights;
2) as Article 4362 of the CCU provides for deprivation 
of liberty in all three parts for non-violent acts, it is 
necessary to check the compliance of this provision  
with Article 3 of the Convention (in terms of 
proportionality of punishment to the act committed) 
and Article 5 of the Convention (on the principle of 
legal certainty in the imposition of a custodial sentence).

2. Мaterials and Methods
The empirical basis of the study was: (1) statistical 

data on the participation of Ukraine as a defendant 
in ECHR cases and the costs incurred by it for 
compensation of damages in 2019-2023; (2) about 
900 verdicts of Ukrainian courts under Article 4362 

of the Criminal Code; (3) the results of the survey 
of 4015 law enforcement officers of Ukraine on 
countering the glorification of Russian armed  
aggression in Ukraine; (4) the results of the survey of 
16 Ukrainian judges on countering the glorification of 
Russian armed aggression in Ukraine; (5) 46 judgments 
of the ECHR. The methods used were: dialectic, 
induction and deduction, analysis and synthesis, 
economic analysis.

3. Literature Review

3.1. Regarding the Study of Possible Losses  
of the State Budget of Ukraine due  
to Participation as a Defendant in the ECHR

The issue of direct forecasting of losses for the state 
budgets of the countries caused by their participation 
as defendants in the ECHR has not been the  
subject of separate studies. However, a certain idea 
of this problem can be gained thanks to the research 
of V. Fikfak (2020), which is devoted to the analysis 
of a certain "information asymmetry" in the position 
of applicant and respondent states due to the absence 
of an official scale of the Court according to which 
the amount of damages is calculated. In particular,  
the author concludes that states are in a more 
advantageous position than individuals, since in most 
cases they are able to calculate the appropriate price 
of satisfaction and in some cases to include in the 
state budget the projected amount of compensation 
according to the ECHR decision (Fikfak, 2020, p. 361).

At the same time, part of V. Fikfak's research also 
covered the aspects of the "cost" of non-implementation 
of ECHR decisions (2018). Thus, based on the  
methods of economic analysis, a trend was established: 



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the more complaints against the state are submitted 
to the ECHR, the less compensation it pays in the 
end (Fikfak, 2018, p. 1110). In addition, the results 
of S. Roper's research (2017, p. 137) confirm that for  
some countries it is cheaper to pay just satisfaction  
than to revise national legislation.

For the purposes of this research, the article by 
V. Makoviі, O. Kuznichenko and O. Budyachenko 
(2022, p. 122) is also of interest, in which they  
conclude that a decrease in the rate of fulfilment of 
compensation claims (almost 8 times) was observed 
for Ukraine due to the lack of an appropriate financial 
mechanism for such a procedure.

3.2. Regarding the Study of the Rights  
to Liberty and Security of the Person,  
to Respect for Private and Family Life, 
Freedom of Expression,  
and their Implementation  
in the ECHR Positions

The right to liberty and security of the person, respect 
for private and family life and freedom of expression 
as guarantees of the Convention, as well as their 
implementation in the positions of the ECHR, have 
been studied by a fairly wide range of scholars.

Accordingly, in the context of the right to liberty 
and security of person guaranteed by Article 5  
of the Convention, a large body of scholarship is 
devoted to the question of ensuring this right in  
criminal proceedings, as well as in the sentencing and 
execution of sentences (Bettinson and Dingwall, 2013; 
Lach, 2021; Lehner, 2012; Martufi and Peristeridou, 
2020; Tumanyants et al., 2023).

At the same time, in terms of scientific coverage of 
the issue of guaranteeing freedom of expression under 
Article 10 of the Convention, a significant proportion 
of publications relate to the correlation between 
this freedom and hate speech (Buyse, 2014; Caruso, 
2017; Cannie and Voorhoof, 2011; Sardo, 2022; 
Mchangamat and Alkiviadou, 2021; etc.). In addition, 
the "qualitative" aspect of freedom of expression  
has also been studied in the context of the provision 
of truthful, accurate and reliable information by 
public authorities and the protection of the public 
from government interference (Pentney, 2024); the 
exercise of such a right under martial law (in terms of 
identifying criteria for determining the proportionality  
of interference) (Slavko et al., 2023).

The compatibility of criminal law provisions with  
the practice of the ECHR and the Convention on 
Freedom of Expression has been the subject of  
only a few academic studies. In particular, J. Rowbottom 
(2012) elaborated on the aspects of excessive 
criminalisation and regulation of 'everyday speech' 
and accordingly raised the issue of finding a more 
proportionate control over it, taking into account 

alternatives to criminal punishment. Similarly, 
N. Alkiviadou (2024) highlighted the issue of 
expediency in the context of the principles of  
necessity and proportionality under Article 10 of 
the Convention, in relation to the prosecution of an  
Internet user for statements made by other persons in 
comments on their posts.

With regard to research on the realisation of the 
right to respect for private and family life, numerous 
developments cover the issue of legal protection of 
privacy in criminal proceedings: from publications on 
the collection of big data by the police in the search for 
digital evidence (Sunde, 2023) to the use of mobile 
phone location information (Keyaerts, 2019).

The provisions of Article 4362 of the CCU 
have been studied in the works of L.M. Abakina-
Pilyavska (2023), A.M. Babenko, M.V. Karchevskyi 
(2023), V.S. Batyrgareieva (2022), D.O. Oleynikov, 
A.Y. Serdechna (2022), R.O. Movchan (2022), 
O.E. Radutnyi (2022), M.I. Khavroniuk (2022), etc.

Concurrently, the question of the provision's 
compliance with the Convention's provisions and 
the ECHR's case law has not yet been the subject of 
a discrete analysis.

4. Results and Discussion

4.1. Regarding the Application  
of Article 10 of the Convention  
(Right to Freedom of Expression)  
and Article 8 of the Convention  
(Right to Respect for Private Life)

The utilisation of language as a medium for human 
communication has the capacity to foster cohesion 
and unity. However, it can concurrently be employed 
to incite bigotry, division, hatred and distrust (Agbor, 
2024). In this regard, freedom of expression as 
a fundamental human right can be limited by the rights 
of others to be treated with dignity and reason, as well 
as by the right of everyone to a civilised and tranquil 
public space (Fernando et al., 2022). On the one hand, 
it is emphasised that this freedom is only subject to 
restrictions when its realisation causes harm to others 
(Mill, 1859). On the other hand, it is emphasised 
that the realisation of this right requires taking into  
account various balances that should take the form of 
calibrating the infrastructure of freedom of expression, 
which is constantly evolving (Barber, 2023).

It is reasonable to concur with the perspective that 
the capacity to articulate perspectives, even those that 
may be unkind in their articulation, does not inherently 
constitute a violation of human rights, given the  
minimal probability of attaining a threshold of harm 
that could result in such a violation (Gelber, 2024).

In its case law, the ECHR emphasises that freedom 
of expression, in accordance with Article 10(2) of 



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the Convention, applies not only to "information" or 
"ideas" that are received with approval or are considered 
harmless or frivolous, but also to those that may 
offend, shock or disturb. These are the requirements 
of pluralism, tolerance and open-mindedness,  
without which there can be no "democratic society" 
(Handyside v. the United Kingdom, 1976; Shvydka 
v. Ukraine, 2014; Oberschlick v. Austria, 1991;  
Otto-Preminger-Institut v. Austria, 1994; "Women 
On Waves" and Others v. Portugal, 2009). Article 10  
of the Convention protects not only the content of 
ideas and information expressed, but also the form in 
which they are disseminated: oral expressions, articles 
in the media, literary and artistic works, audiovisual 
media, conduct, and so forth (Cumpana and Mazare 
v. Romania, 2004; Jersild v. Denmark, 1994; Ukrainian 
Media Group v. Ukraine, 2005; etc.). Thus, the acts 
provided for in Article 4362 of the CCU are, by their 
very nature, expressions of personal opinion.

The ECHR emphasises that States parties are  
bound by positive obligations regarding freedom 
of expression: they must not only refrain from any 
interference, but also take protective measures, even 
in the sphere of relations between private individuals. 
They must also create an enabling environment for 
all interested parties to participate in public debate 
and ensure that they can express their opinions and 
ideas without fear (Dink v. Turkey, 2010). Freedom 
of expression includes the protection of a person 
from possible negative consequences in cases where 
certain views are attributed to him or her following 
previous public statements (Vogt v. Germany, 1995). 
On this basis, it can be said that the provision of 
Article 4362 of the CCU is related to the restriction 
of freedom of expression guaranteed by Article 10  
of the Convention.

Moreover, since this provision does not specify the 
sphere of expression of these manifestations, it covers 
manifestations of these actions in both the public 
and private spheres. At the same time, the ECHR 
emphasises that the concept of "private life" is broad 
and cannot be defined exhaustively. The restriction 
of this concept to personal boundaries, within which 
individuals are at liberty to live their private lives 
as they wish whilst entirely excluding the outside 
world from these boundaries, would be too strict  
(Burghartz v. Switzerland, 1994; Friedl v. Austria, 1994; 
Mikulic v. Croatia, 2002; Niemietz v. Germany, 1992; 
X and Y v. the Netherlands, 1985). The right to respect 
for "correspondence" as part of the right to respect 
for private life extends to telephone conversations  
between family members or other persons (Klass 
and Others v. Germany, 1978; Malone v. the United 
Kingdom, 1985; Margareta and Roger Andersson v. 
Sweden, 1992), including through the use of the latest 
technologies (Copland v. the United Kingdom, 2007; 
Iliya Stefanov v. Bulgaria, 2008; Petri Sallinen and 

Others v. Finland, 2005). Thus, the criminalisation of 
the relevant acts in the private sphere, i.e., in private 
conversations (oral, telephone, through information 
and communication systems), correspondence, etc., 
restricts the right to privacy.

The question therefore arises as to whether the 
restrictions imposed by Article 4362 of the CCU 
are contrary to Articles 8 and 10 of the Convention.  
First of all, it should be emphasised that the rights 
guaranteed by these articles are not absolute and  
may be subject to restrictions, which, however, 
must be clearly explained and the need for them 
convincingly established (Shvydka v. Ukraine, 2014; 
Stoll v. Switzerland, 2007). Restrictions on freedom 
of expression must also be subject to scrutiny and be 
convincingly justified (Sürek v. Turkey, 1999). Thus, 
the nature of these restrictions and their compatibility  
with the Convention must be critically analysed.

When deciding whether these articles of the 
Convention have been violated, the three-part 
test used in the ECHR case law should be applied  
(Niemietz v. Germany, 1992; Shvydka v. Ukraine, 2014; 
Siryk v. Ukraine, 2011; Steel and Others v. the United 
Kingdom, 1998; Ukrainian Media Group v. Ukraine, 
2005), i.e., the criteria for justifying interference  
with the rights provided for in these articles:
– The presence of interference "provided for by law"; 
– compliance of the interference with a legitimate goal; 
– the need for interference in "democratic society", i.e., 
proportionality to the goal pursued.

As for the existence of interference "provided for by 
law", the ECHR checks whether the applicant is  
subject to restrictions in the state party’s laws to the 
Convention. As a rule, a restriction must be legalised  
by parliament in a written and public law.

The provisions of Article 4362 of the CCU were 
introduced in accordance with the established  
procedure, namely the Law of Ukraine "On Amendments 
to Certain Legislative Acts of Ukraine to Strengthen 
Criminal Liability for Production and Distribution 
of Prohibited Information Products" (The Law of 
Ukraine "On Amendments to Certain Legislative 
Acts of Ukraine to Strengthen Criminal Liability  
for Production and Distribution of Prohibited 
Information Products", 2022). Thus, the manner 
and form of fixing this restriction complied with the 
requirements of the Convention. 

Regarding the compliance of the interference with the 
legitimate aim.

A legitimate aim implies an exhaustive list  
of possible grounds for restricting a right/freedom 
provided for in the Convention. State representatives 
cannot arbitrarily go beyond this list. Hence, the 
purpose of the restrictions must correspond to one 
of the legitimate interests defined in Articles 8(2) 
and 10(2) of the Convention, which must be real and  
not potential.



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Article 8(2) of the Convention lists the following 

grounds for restriction: the interests of national  
security, public safety or the economic well-being 
of the country; the prevention of disorder or crime; 
the protection of health or morals; or the protection 
of the rights and freedoms of others. Article 10(2)  
of the Convention lists the following grounds: the 
interests of national security, territorial integrity or 
public safety; the prevention of disorder or crime; 
the protection of health or morals; the protection 
of the reputation or rights of others; the prevention 
of disclosure of confidential information; or the 
maintenance of the authority and impartiality of the 
court. 

Thus, the criminal liability of a person under article 
4362 of the CCU can be recognised as compatible  
with a legitimate aim under both Articles 8 and 10  
of the Convention, since the fight against this offence 
is aimed at protecting national interests, territorial 
integrity and public morality. 

Regarding the need for intervention in a "democratic 
society" (proportionality to the aim pursued).

An interference can only be recognised as "necessary 
in a democratic society" if there is a legitimate  
restriction and a legitimate aim of the restriction.  
In applying this criterion, it is also necessary to  
determine whether the aim was proportionate to 
the means used to achieve it. In turn, the purpose 
is considered to be those interests provided for in  
Article 8(2) and Article 10(2) of the Convention,  
for the protection of which states may interfere 
with private life and freedom of expression.  
The means is the interference itself, i.e., in the case under 
study – the establishment of criminal responsibility. 
Proportionality in each case is assessed from the  
point of view of compliance with the principles of 
democratic society.

The ECHR has held that the adjective "necessary" 
within the meaning of Article 10(2) of the  
Convention requires the existence of a "social  
emergency" (Observer and Guardian v. the United 
Kingdom, 1991). Obviously, the situation of full-scale 
armed aggression corresponds to the understanding 
of such a situation, and the aim of the intervention 
corresponds to that defined in Articles 8(2) and 
10(2) of the Convention in the interests of national 
security, territorial integrity, the prevention of riots 
or other crimes (primarily against the peace and 
security of humanity or national security), as well as 
public morality. Therefore, interference with freedom 
of expression through the use of criminal law means 
may be considered necessary in a democratic society 
during martial law or armed conflict and meet an  
urgent social need.

At the same time, the ECHR states that in assessing 
the proportionality of the interference, account 
should be taken, inter alia, of the nature and severity 

of the penalties imposed. Moreover, the Court should 
pay particular attention to cases where the penalties 
imposed by national authorities for non-violent 
behaviour include imprisonment (Ceylan v. Turkey, 
1999; Shvydka v. Ukraine, 2014; Skalka v. Poland, 2003; 
Tammer v. Estonia, 2001; Taranenko v. Russia, 2014).

At the same time, with regard to the sanctions for 
an offence under Art. 4362 of the CCU, it should be 
noted that all three parts of this article provide for 
imprisonment for non-violent offences. The imposition 
of a custodial sentence for non-violent acts is of 
concern to the ECHR because of the high probability 
of a disproportion between the social danger of the act 
and the punishment, i.e., a disproportion between the 
punishment and the objective pursued. This requires 
the legislator to revise the sanctions for acts under 
Article 4362 of the CCU.

The establishment of criminal liability for the acts 
provided for in the analysed article in the private 
sphere (private communications, telephone calls, 
correspondence, etc.) does not appear to be justified 
by the need to intervene in "democratic society", since 
they present a significantly lower public danger and 
risk of violation of the relevant interests specified in 
Article 8(2) of the Convention. Therefore, the criminal 
prohibition in this case does not seem to be justified, 
all the more so since it is punishable by imprisonment. 
From this point of view, there is at least a reason  
to limit the scope of criminal acts provided for in  
Article 4362 of the CCU.

Therefore, not all the criteria of the above-mentioned 
three-part test are met with regard to the restrictions 
of the rights guaranteed by Articles 8 and 10 of the 
Convention by the provisions of Article 4362 of the 
CCU.

It is also noteworthy that these restrictions may 
be regarded as a derogation by Ukraine from its  
obligations under the Convention. Article 15 of the 
Convention contemplates such a possibility,  
particularly with regard to the obligations enshrined  
in Articles 3, 5, 8, and 10, in circumstances of  
war or other imminent threat to the nation's 
existence. However, these derogations are permitted  
only to the extent necessitated by the exigencies of the 
situation, and on the condition that such measures 
do not contravene the state's other international legal 
obligations.

The ECHR emphasises that the ordinary meaning 
of the phrase "public danger threatening the life of 
the nation" is "an extraordinary crisis or emergency  
affecting the whole population and threatening the 
established life of the community constituting the 
State" (Lawless v. Ireland, 1961). It is primarily the 
responsibility of each State Party to determine whether 
a "public danger" threatens the life of the nation,  
since it is responsible for the "life of the nation"  
(Ireland v. the United Kingdom, 1978).



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The adoption of the Law and its entry into force 

(March 16, 2022) took place in the context of the full-
scale invasion of Ukraine by the Russian Federation. 
It appears that this situation fell within the meaning 
of "war or other public danger threatening the life 
of the nation" under Article 15 of the Convention, 
and therefore entitled Ukraine to take measures 
derogating from its obligations under the Convention. 
It is also reasonable to assume that the gravity of the  
situation in the first weeks after the start of the  
full-scale invasion justified the application of such 
restrictions, while at the same time such measures  
were not inconsistent with Ukraine's other obligations 
under international law.

In order to determine whether Ukraine has  
complied with the limits required by the urgency of 
the situation in withdrawing from these obligations, 
such factors as: the nature of the rights affected in  
connection with the withdrawal from obligations, 
the circumstances leading to the emergency and its  
duration should be taken into account. This includes 
questions such as whether ordinary law would be 
sufficient to deal with the threat posed to the public; 
whether the measures are a valid response to the 
emergency; whether the measures have been applied 
for the purpose for which they were authorised;  
whether the scope of the measures is limited and the 
reasons given for their application; whether the need 
for derogation is continually reviewed or whether 
any relaxation of the measures is envisaged; whether 
safeguards against abuse have been provided; the 
importance of the right in question and the wider  
purpose of the judicial review of the interference with 
that right; whether judicial review of the measures 
was practicable; the proportionality of the measures 
and whether they have not caused unjustified  
discrimination (A and Others v. United Kingdom, 
2009; Aksoy v. Turkey, 1996; Brannigan and McBride v.  
United Kingdom, 1993; Ireland v. the United  
Kingdom, 1978; Lawless v. Ireland, 1961). On the basis 
of these criteria, it can be concluded that at least one 
of them is present in the situation under examination, 
such as: constant review of the need to derogate from 
the obligations; possible relaxation of the measures 
introduced; proportionality of the measures. At the 
same time, the mentioned criteria are obviously taken 
into account by the ECHR in their entirety and in 
interaction with other factors, and therefore cannot 
by themselves indicate a clear departure from the 
limits required by the urgency, taking into account 
the unprecedented nature of the threat created by the  
armed aggression of the Russian Federation.

At the same time, in accordance with Article 15(3) 
of the Convention, Ukraine had to fully inform 
the Secretary General of the Council of Europe 
of the measures taken and the reasons for them.  

The ECHR emphasises that the main purpose of such 
notification is to make public the derogation from 
obligations (Greece v. United Kingdom, 1956). 

It should be emphasised that such notifications 
were made by Ukraine even before the full-scale 
invasion: in particular, in June and November 2015,  
June 2016 by oral notes No. 31011/32-119/1-678, 
31011/32-119/1-1124 and 31011/32-119/1-580 
(Council of Europe, n.d.).

With the beginning of Russia's full-scale invasion of 
Ukraine, the first note verbale No. 31011/32-017-3  
with the corresponding derogation was sent on  
February 28. It referred to Ukraine's derogation from 
its obligations under Articles 4 (paragraph 3), 8, 9, 
10, 11, 13, 14, 16 of the Convention, Articles 1, 2 of 
the Additional Protocol, Article 2 of Protocol 4 to the 
Convention in connection with the imposition of 
martial law in Ukraine (Council of Europe, 2022).  
At the same time, the adoption of Law No. 2110-IX 
(The Law of Ukraine “On Amendments to Certain 
Legislative Acts of Ukraine to Strengthen Criminal 
Liability for Production and Distribution of  
Prohibited Information Products”, 2022) and the 
addition of a new Article 4362 to the CCU were not 
mentioned in this report.

In assessing the legal consequences of the possible  
lack of proper notification at the time of the 
implementation of the restrictions of the Convention, 
which actually took place with the entry into force 
of Law No. 2110-IX, the position of the ECHR  
should be taken into account, according to which, 
in the absence of official and public notification of 
derogation from obligations, Article 15 does not 
apply to measures taken by the respondent State  
(Cyprys v. Turkey, 1976). In addition, the notification 
requirement is satisfied by attaching copies of  
the legal instruments under which the emergency 
measures are to be taken, together with an  
explanation of their purpose (Lawless v. Ireland, 1961; 
Netherlands v. Greece, 1969; Norway v. Greece, 1969; 
Sweden v. Greece, 1969; The Greek Case: Denmark v. 
Greece, 1969).

In view of the above, with regard to the provision 
under Article 4362(2) of the CCU, the existence of 
prior proper notification of the Secretary General  
of the Council of Europe by Ukraine of the measures 
taken by it to derogate from its obligations under the 
Convention and the reasons for their adoption may 
be questioned: although general notification took 
place, a copy of Law No. 2110-IX (The Law of Ukraine  
"On Amendments to Certain Legislative Acts  
of Ukraine to Strengthen Criminal Liability for 
Production and Distribution of Prohibited Information 
Products", 2022) was obviously not provided, which 
may indicate signs of violation of Articles 8 and 10  
of the Convention.



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4.2. Regarding the Application  
of Article 3 of the Convention  
for the Prohibition of Torture  
(in Terms of Proportionality of Punishment)

The authorities cannot justify interfering in the 
lives of citizens to a greater extent than is necessary  
to achieve a particular objective (Yost, 2023). In this 
regard, the guarantees enshrined in Article 3 of the 
Convention are considered to provide the necessary 
protection against dehumanising policies and  
practices (Mavronicola, 2024). It follows that the 
fundamental category in terms of the requirements of 
this article is "proportionality", which is also seen as the 
right of the offender not to be subjected to excessive 
punishment (Furramani and Hoti, 2022).

The ECHR emphasises that all civilised countries 
recognise the principle of the fairness of punishment. 
The assessment of what constitutes a fair or inhuman 
or degrading punishment may reasonably lead to 
different answers in different countries and, moreover, 
to different answers at different times in the same 
country. At the same time, the punishment must 
not be manifestly disproportionate, as this violates  
Article 3 of the Convention (Vinter and Others v. the 
United Kingdom, 2013).

It is evident that the legislator has incorporated 
provisions for the imposition of imprisonment as 
a sanction for non-violent actions, as delineated in 
Article 4362 of the CCU. These provisions, however,  
do not result in any harm to any individual or legal  
entity. Consequently, this omission creates the risk  
of the imposition of manifestly disproportionate 
sentences, which may contravene Article 3 of the 
Convention with regard to the proportionality of 
punishment and the recognition of punishment as 
inhuman or degrading within the meaning of this 
Article.

4.3. Regarding the Application of Article 5  
of the Convention for the Protection  
of the Right to Liberty and Security of Person 
(on the Principle of Legal Certainty  
when Imposing a Sentence of Custody)

According to Richard A. Edwards, a potential threat 
to the implementation of the rule of law are the so-
called legal black holes, some of which are created by 
the legislature (Edwards, 2020). The response to such 
negative legal phenomena should be to establish legal 
certainty, which simultaneously covers many aspects, 
the common denominator of which is the focus on the 
individual (Suominen, 2014).

Thus, in the context of the interpretation of  
Article 5 of the Convention, the ECHR recalls that  
it is extremely important to ensure the general principle 
of legal certainty where deprivation of liberty is 
concerned. Therefore, it is an indispensable requirement 

that the conditions under which deprivation of 
liberty may be carried out are clearly formulated in 
national law and that the application of the latter is 
foreseeable to the extent that it satisfies the standard of  
"lawfulness" established by the Convention, which 
requires that all laws be formulated with sufficient 
clarity to enable a citizen, if necessary by seeking 
appropriate advice, to foresee to a sufficient degree in 
the circumstances the consequences to which the action 
may lead; the law must be accessible, it must serve as 
an adequate guide for the citizen, sufficient in the 
context in which certain legal norms are applied in the  
particular case (Baranowski v. Poland, 2000;  
Halford v. the United Kingdom, 1997; Ichin and 
Others v. Ukraine, 2010; Steel and Others v. the  
United Kingdom, 1998; Sunday Times v. the United 
Kingdom, 1991).

There is no doubt that these rules are accessible, as 
they were published in a timely manner and in full.  
At the same time, the clarity of these rules is  
debatable, based on their shortcomings, namely:
– The inconsistency of the object of this criminal 
offence, which is the information security of Ukraine, 
with the category of crimes against peace, human 
security and international law and order;
– substantive closeness of the acts provided for in 
Article 4362 (1) of the CCU and lack of clarity in their 
distinction;
– uncertainty about the meaning of the foreign 
language term "glorification"; 
– uncertainty of the concept of "materials" in  
Article 4362 (2) of the CCU.

It is therefore important to note that the provisions 
of Art. 4362 of the CCU lack the clarity and 
precision required by the law on criminal liability.  
This may lead to too broad and unequal interpretation 
and unpredictability in its application. Consequently, 
there is a risk of infringement of the legal certainty 
principle (Article 5 of the Convention), and given  
that the sanctions of this article encompass 
imprisonment as a penalty, this may result in violations 
of human rights due to the failure to provide adequate 
protection against arbitrary interference by public 
authorities.

4.4. Regarding the Forecast  
of the Price of Satisfaction  
and Losses to the State Budget of Ukraine

In each judgment in which the ECHR finds 
a violation, the Court considers the need to apply  
Article 41 of the Convention, which provides that 
where the Court finds a violation of the Convention or 
its Protocols and the domestic law of the Contracting 
Party concerned provides for only partial reparation,  
the Court shall, if necessary, afford just satisfaction to 
the injured party.



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Having established the incompatibility of  

Article 4362 of the CCU with the four articles of the 
Convention, it can be assumed that if convicts file 
claims against Ukraine under this Article, with proper 
processing of the relevant applications and proper 
representation of the applicants' interests, a number of 
these claims will be satisfied by the ECHR and Ukraine 
will be obliged to pay compensation in these cases. 
In such circumstances, the imperfection of criminal 
legislation will result in additional expenditures from 
the state budget of Ukraine.

In this context, it seems appropriate to make rough 
estimates of these costs. It should be noted that they 
are purely hypothetical and based on the existing 
experience of compensation awarded by the ECHR in 
claims against Ukraine.

For this purpose, it is advisable to analyse the  
statistics of Ukraine's participation as a defendant in 
the ECHR and the costs of compensation incurred by 
it in the previous years (Committee of Ministers of the 
Council of Europe, 2019; 2020; 2021; 2022; 2023) 
(given that one judgment may contain violations of 
several articles of the Convention), which are reflected 
in Table 2.

The analysis of the aforementioned data indicates 
that the mean compensation amount in a single claim 
against Ukraine over the preceding five-year period 
amounts to 13,190.8 EUR. This data can also be 
utilised as a foundation for calculating the prospective 
compensation amount in instances of violation  
of the Convention, as stipulated under Article 4362 

of the CCU. Simultaneously, while the magnitude of 
compensation for violations of particular articles of 
the Convention may vary in practice, it is imperative 
to recognise that a single case may encompass  
multiple violations of the aforementioned articles. 
Consequently, the discourse pertains to the aggregate 
compensation for all these violations. This substantiates 
the validity of employing the aforementioned average 
amount of compensation in these calculations. 

In determining the potential number of applications 
to the ECHR alleging violation of the relevant  
Convention rights by Ukraine in the application of 
Article 4362 of the CCU, it is necessary to proceed  
from the number of verdicts under this article  
delivered to date. Therefore, as of 01.09.2024, the 

Unified State Register of Court Decisions contains 
1373 verdicts under Art. 4362 of the CCU (this 
figure is approximate, given that, on the one hand, 
a certain part of the verdicts entered in the Register are  
duplicate; on the other hand, not all verdicts under  
this article were correctly reflected in the Register) 
(Unified State Register of Court Decisions, n.d.). 
Consequently, the upper limit of potential applications 
to the ECHR with applications for violation of the 
Convention as of 01.09.2024 is approximately 1370.

At the same time, the analysis of the court decisions 
showed that in 93.9% of the cases the persons were 
sentenced to imprisonment and in 1.9% to arrest.  
At the same time, in almost 89% of the cases, the 
convicted persons were released on probation on the 
basis of Article 75 of the CCU, and in only 11% of the 
cases was the sentence (imprisonment, arrest, fine, 
restriction of liberty or correctional labour) actually 
served.

However, while the reality of the punishment  
imposed is not a prerequisite for the ECHR to find 
a violation of the Convention, it may be considered 
as a factor that potentially makes an application to the 
ECHR by a convicted person more likely than in the 
case of release from punishment. 

Furthermore, when assessing the possibility of 
applying to the ECHR, it is important to consider 
the social profile of convicted persons. Among the 
individuals convicted under Art. 4362 of the CCU, 
only 16.1% were able-bodied and employed, while the 
remaining cases were comprised of pensioners (34.6%), 
unemployed individuals (24.4%), and other categories 
(24.8%). While this criterion is not definitive, it does 
indirectly suggest that individuals with employment 
are more inclined to submit applications to the ECHR, 
potentially due to the substantial financial costs 
associated with the process.

It can be concluded from the above that, based on 
the combination of these criteria, the projected number 
of applications to the ECHR in connection with  
violations of the Convention as a result of the  
application of Article 4362 of the CCU may reach about 
2–5% of the total number of convicts. This equates to 
approximately 20–70 persons as of September 1, 2024. 

Therefore, based on the average amount of compen-
sation in cases against Ukraine of 13,190.8 EUR, 

Table 2
ECHR judgements against Ukraine and amounts of compensation for 2019-2023 period

Period 2019 2020 2021 2022 2023
Total number of decisions recognising violations 
of the legislation 111 84 196 145 125

Total amount of payments allocated from the state 
budget 1 675 140 EUR 685 755 EUR 2 452 840 EUR 1 864 517 EUR  2 166 105 EUR

Average amount of compensation per case 
(total amount divided by number of decisions)

 15 091 EUR 
per claim

 8 163 EUR  
per claim

 12 514 EUR 
per claim

12 858 EUR 
per claim

 17 328 EUR 
per claim 



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Vol. 10 No. 5, 2024 
it is estimated that the total amount of possible 
satisfaction will fall within the range of  
264,000 EUR to 923,000 EUR. It is acknowledged  
that this figure may be less and significantly higher  
than the aforementioned amount, with a maximum 
potential of 18 million EUR (assuming that all  
convicted persons file claims).

At the same time, in the light of the above analysis,  
the likelihood of the ECHR satisfying the applicants' 
claims is quite high. At the same time, it should be  
borne in mind both that the prospect of such  
satisfaction actually being granted is rather remote, 
given that an application to the ECHR is possible 
after all national remedies have been exhausted, and  
that the examination of cases in the ECHR is lengthy, 
taking an average of three to five years. Therefore, the 
first economic consequences of the shortcomings  
of Art. 4362 of the CCU will probably not be felt for 
another 5 years. On the other hand, the number of 
convicts under Art. 4362 of the CCU will increase,  
which may increase the burden on the state budget  
of Ukraine.

5. Conclusions
1. The penal provisions provided for in Аrticle 4362  

of the CCU, by their subject matter and nature,  
create the risk of restricting the rights to privacy  
(Article 8), freedom of speech and expression  
(Article 10) and, indirectly, the prohibition of torture 
(Article 3) and liberty and security of the person 
(Article 5) guaranteed by the Convention, and may 
therefore have a negative economic impact in the 
form of possible expenses from the state budget for 
the payment of compensation resulting from the  
violation of the specified provisions of the Convention.

2. The evaluation of the restriction of the right to  
privacy and freedom of speech and expression utilising 
the three-part test (the existence of an interference 
"provided for by law"; the correspondence of the 
interference to a legitimate (legitimate) purpose; the 
necessity for interference in "democratic society") 
demonstrates inadequate adherence to these criteria.  
It is evident that, despite the interference being 
authorised by a law that had been duly adopted 
and made accessible, the law in question lacked the  
requisite clarity and specificity. The aforementioned 
interference was found to be consistent with the 
legitimate aim of protecting the interests of national 
security, territorial integrity, the prevention of disorder 
or other crimes, or public morals. However, it was not 
sufficiently proportionate to the objective pursued, 
in that it imposed a criminal prohibition in the 
private sphere (private communications, telephone 
calls, correspondence) and was disproportionate in 
relation to the social danger of the acts and the prison  
sentences provided for them.

3. In the situation that has developed as a result  
of the full-scale invasion of the Russian Federation, 
Ukraine's derogation from its obligations under 
Articles 8 and 10 of the Convention would be  
entirely permissible. This is due to the conditions 
of martial law, which correspond to the situation of 
"war or other public danger threatening the life of the 
nation", and the limits of such a derogation correspond, 
by most criteria, to the gravity of the situation.  
At the same time, as a party to the Convention, Ukraine 
had to inform the Secretary General of the Council of 
Europe of the measures it had taken and the reasons 
for them. However, the proper implementation of  
these measures by Ukraine may be questioned, which 
may lead to the incompatibility of such restrictions  
with the provisions of the Convention.

4. The imposition by the legislator of imprisonment 
for non-violent acts in the sanctions of Article 4362  
of the CCU creates conditions for the courts  
to impose clearly disproportionate sentences, which 
may violate Article 3 of the Convention on the 
proportionality of punishment and the recognition of 
punishment as inhuman or degrading.

5. The lack of clarity and precision required  
of a law on criminal responsibility in the provisions 
of Article 4362 of the CCU may lead to overly broad 
and unequal interpretations and unpredictability in 
its application, thus violating the principle of legal  
certainty within the meaning of Article 5 of the 
Convention. The inclusion of deprivation of liberty 
among the sanctions provided for in this article may 
lead to human rights violations, as it does not provide 
adequate protection against arbitrary interference by 
public authorities.

6. Utilising the mean compensation amount of 
13,190.8 EUR for cases against Ukraine and the 
number of convictions under Article 4362 of the CCU,  
along with the factors that may influence the number of 
applications to the ECHR by persons convicted under 
this Article, it is feasible to ascertain the approximate 
total amount of possible satisfaction, ranging  
from 264,000 EUR to 923,000 EUR. Conversely,  
if all convicted persons were to file claims, the total 
could reach up to 18 million EUR.

7. The results of this study may be further used in 
the rule-making practice in the field of criminal law 
and extrapolated, in particular, to other provisions of 
criminal law: 
– Serve as a deterrent to excessive criminalisation  
and punishment of acts; 
– to serve as a reminder to the legislator of the need to 
ensure that criminal law complies with international 
standards and society's perceptions of justice;
– to orient legislator to a thorough advance calculation 
of the economic effect, primarily in the aspect of possible 
risks of additional costs from the state budget, when 
introducing criminal responsibility for certain acts.



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Received on: 10th of October, 2024
Accepted on: 29th of November, 2024
Published on: 30th of December, 2024