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Weekly analytics for 13 – 19 October 2020

19.10.2020

Political Points of the Centre of Policy and Legal Reform include a weekly expert analysis of the most important processes in Ukraine in areas of constitutionalism, political parties and elections, governance and public administration reform, judiciary, combatting corruption, criminal justice, etc. 

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Collaborationism is a crime under the Criminal Code of Ukraine


Event

On October 14, public actors, activists and veterans of the Russian-Ukrainian war voiced their demands to the authorities in front of the Office of the President of Ukraine. In particular, they demanded to:

– adopt a law “On the Protection of Ukrainian Statehood from the Manifestations of “Сollaborationism”, which will provide for the introduction of the concept of “collaborator” in the Ukrainian legal field, as well as the creation of a special commission to consider the crimes of collaborators;

– ensure an effective response of the SSU and the National Police to the pro-Russian activities of Ukrainian citizens who have been seen in collaborationism since 2014;

– initiate the revocation of the broadcasting licenses of channels “112”, NewsOne, ZIK, “Nash”, “Inter”, “Kyiv Live”.

CPLR position

The term “collaborationism” is known to mean the cooperation of citizens of the state with the invading state and its representatives in the interests of the enemy to the detriment of the state or its allies and participation in the persecution of patriots of the state of which the collaborator is a citizen.

The Criminal Code of Ukraine (hereinafter – the CC) directly provides for liability for virtually all of these acts.

According to Article 111 (“Treason”) of the CC of Ukraine, treason may take the following three forms: 1) transition to the side of the enemy in a state of war or during an armed conflict; 2) espionage; 3) providing assistance to a foreign state, foreign organization or their representatives in carrying out subversive activities against Ukraine.

In this context, transition to the side of the enemy means that a citizen of Ukraine provides direct assistance to a state with which Ukraine is at war or in armed conflict. In specific cases, this crime may consist of entering the service of the police, military or other formations of the enemy state, providing means for the commission of crimes or other assistance to agents of its special services.

Espionage is the transfer or collection of data that is a state secret for the purpose of their transferring to a foreign state, foreign organization or their representatives.

At the same time, the concept of “assisting a foreign state, foreign organization or their representatives in carrying out subversive activities against Ukraine” is very broad – it means promoting possible or actual efforts to harm the national security of Ukraine, and committing any acts that pose such a threat, can be seen as subversive activities against Ukraine. Undoubtedly, the persecution of Ukrainian patriots is also a form of subversive activity.

According to the legislation of Ukraine, threats to national security are existing and potential phenomena and factors that negatively affect the state of national security, complicate the realization of national interests of Ukraine in foreign and domestic policy, state security, economic, social and humanitarian, scientific, technological, environmental, information and military spheres. Assistance in carrying out subversive activities can be provided by organizing or committing a specific crime, inciting other persons to treason, removing obstacles to committing certain acts, and so on.

Thus, collaborationism is a crime for which criminal liability is provided and which must be investigated on the basis and in the manner prescribed by the Criminal Procedure Code of Ukraine. According to Article 124 of the Constitution of Ukraine, justice is administered exclusively by courts, and therefore no special commissions that would consider the crimes of collaborators can be created. The Security Service of Ukraine and the Prosecutor’s Office, within their competence, must exercise their powers to investigate the crimes of collaboration without warning from the President of Ukraine.

As for the license for television and radio broadcasting, its revocation can be initiated only by the National Council of Television and Radio Broadcasting of Ukraine, on the application of which the court makes a decision.