DEFINITION AND BOUNDARIES OF ‘PRIVATE COMMUNICATION’ IN UKRAINIAN CRIMINAL PROCEDURE: CHALLENGES IN INTERPRETING ARTICLE 258 OF THE CRIMINAL PROCEDURE CODE

Abstract

This article examines the content and limits of the notion of “private communication” in Ukrainian criminal procedure through the prism of Article 258 of the Criminal Procedure Code of Ukraine. The key point is that this provision establishes not only a procedural ban on interference without an investigating judge’s warrant, but also a minimum concept of privacy linked to the “conditions” under which participants may reasonably expect protection of information from third-party access. Because the statute relies on evaluative wording (“conditions”, “may expect”), the same type of communication may be classified differently depending on context. Accordingly, privacy is not determined by the channel itself (telephone, messenger, letter), but by a combination of factual and legal features: the circle of recipients, access settings, consent to disclosure, the context of professional communications, and the parties’ expectations of confidentiality. The article also addresses the relationship between Article 258 Criminal Procedure Code of Ukraine and constitutional guarantees, as well as the standards under Article 8 of the European Convention on Human Rights, including legality, necessity, proportionality, and the need for effective safeguards against abuse. Relying on ECtHR case-law and the approaches reflected in the practice of the Supreme Court, the paper argues that the mere existence of a warrant is insufficient: decisive are the clarity of the authorization’s limits (scope, time frame, identifiers, categories of data), genuine subsidiarity in using covert investigative measures, and proper documentation of results. A multifactor “reasonable expectation of privacy” test is proposed as a practical tool for qualifying communications as private and for improving the quality of motions and judicial warrants. The practical value of the study lies in promoting a more consistent interpretation of Article 258 Criminal Procedure Code of Ukraine and strengthening judicial oversight of interferences with private communications in a digital environment.