Punishment for collaborationism: human rights activists point out flaws in laws

After the full-blown war broke out, , there were new elements of crimes, such as “collaboration” (Article 111-1 of the Criminal Code of Ukraine) and “aiding and abetting the aggressor state” (Article 111-2 of the Criminal Code of Ukraine) in Ukrainian legislation. In this way, the state tried to cover all types of acceptable cooperation of the population with the occupiers and establish clear boundaries of permitted and prohibited activities in the Russia-controlled territories. However, these articles also pose a threat to Ukrainians who remain under occupation.

Thus, human rights activists studied 691 sentences under various parts of Article 111-1 of the Criminal Code of Ukraine and seven sentences under Article 111-2 of the Criminal Code of Ukraine in the Unified State Register of Court Decisions and identified many problems.

It was discussed during the presentation of an analytical report by human rights activists from the ZMINA Human Rights Center on criminal liability for collaborationism in Ukraine, which took place as part of an event at the country’s main discussion platform BrainHub at Media Center Ukraine – Ukrinform.

According to Onysiia Syniuk, Legal Analyst at ZMINA, the first thing that came to light in practice was the uncertainty of the wording.

“In these articles, both the article on collaboration and the article on aiding and abetting the aggressor state, there are very broad terms that allow those who use them to interpret them in very different ways, which creates a very diverse practice of applying the law. For example, there is such wording as “material resources” when we are talking about the transfer of material resources to representatives of the aggressor state and such a very broad concept as “interaction with the aggressor state.” In particular, during the interviews, the law enforcement agencies representatives state they also do not have a clear understanding of the boundaries of these concepts, what is subject to it and what is not, while facing qualifications and these elements,” she noted.

Onysiia Syniuk notes that not only the concepts promote uncertainty, but also the ratio of genders. According to her, it also goes for the Criminal Code of Ukraine’s existing legislation, in particular, on treason and justification, recognition of aggression as lawful, and justification of its participants, rather than just applying to the new articles on collaboration and aiding and abetting. 

“And when it comes to the clear distinction between the qualification of these articles, it also creates significant obstacles to the implementation of legislation. When it comes to propaganda in educational institutions, for instance, there is a distinct part of the article on collaboration activities that provides for liability for this. However, in fact, there are also cases where the same propaganda in educational institutions, which is absolutely no different from cases that are qualified as collaboration, in this case, is qualified as aiding the aggressor state, even though it is impossible to determine this distinction,” the analyst noted.

Speaking about the practical consequences in this case, Onysiia Syniuk noted that it is worth paying attention to the punishment, which, according to her, is disproportionate and uneven.

“Because in regards to the articles that are difficult to distinguish, for example, when it comes to public calls and justification of aggression within the article on collaboration, it is a misdemeanor. The punishment provided for there is essentially illustrative resulting in deprivation of the right to hold positions and engage in certain activities. If such activities are qualified under an article that justifies and recognizes aggression as legitimate, they will result in a real prison term. That creates a completely diverse practice and no legal certainty, especially for those people who are in the occupied territory and do not know what the consequences of their activities will be and where the limits of their permitted activities in the occupied territory are,” she explained.

In addition, according to the legal analyst, other problems that arise include prioritization.

“Currently, our criminal justice system is extremely overloaded, which can be seen at least in the number of criminal cases that law enforcement officers are currently investigating. These are still cases of ordinary crimes, there is also a huge workload with the number of war crimes case processing and more than 6,000 cases for collaboration. Accordingly, it is very difficult to understand how to cover this entire array without appropriate prioritization,” she added.

According to Onysiia Syniuk, these and several other aspects create problems both for those who have to implement this legislation and for those to whom it applies.

“Because given that inaccuracy in wording, people having unclear distinction do not understand where the limits of their survival are and where the limits of criminal liability are in the occupied area,” she summarized.

BrainHub is the country’s main discussion platform created by Media Center Ukraine – Ukrinform. It brings together experts from the state and civil society sectors. BrainHub hosts intellectual discussions around the issues of the post-war reconstruction of Ukraine. It’s the birthplace of the best ideas that will become the foundation for the road map of Ukraine’s reconstruction in all sectors: economy, infrastructure, education, agriculture, security, digital, etc.

Read more: https://mediacenter.org.ua/news