Why lawyers criticize legislation on collaboration
The author analyzed the statistics and spoke with two lawyers who study court verdicts in detail and correlate them with international law.
Experts involved:
Onysiia Syniuk, international lawyer, legal analyst at the Zmina Human Rights Center
Oleksandr Marin, PhD in Law, Head of the Research Laboratory at Lviv State University of Internal Affairs
Valentyn F. lives in the town of Hertsa, Chernivtsi region, with a population of just over 2,000 people. He has long had a "prejudiced, negative, dismissive" attitude toward the Ukrainian authorities, as quoted in the court's verdict. Therefore, after the start of Russia's full-scale invasion, the man began posting reposts with pro-Russian narratives on his own page on the Vk (formerly VKontakte) social network, which is blocked in Ukraine. In particular, after the liberation of Kherson, he posted a message saying, "The accomplices of the Ukrainian fascists came out in Kherson and began to hang the flags of the Nazi occupiers." Later, he reposted the statement that "Polish special forces entered Ukraine to clean up the population."
Investigators analyzed these and other posts by Valentyn and requested a professional linguistic examination from Yurii Fedkovych Chernivtsi National University. The experts found that the posts contained signs of a public denial by a citizen of Ukraine of the armed aggression against Ukraine. The defendant pleaded guilty, so the court considered the proceedings in a simplified mode and sentenced Valentyn to be deprived of the right to hold positions in state authorities, public administration, local self-government or public services for a period of 10 years. According to Part 1 of Article 111-1 of the Criminal Code of Ukraine "Collaboration Activities", under which the proceedings were investigated, there could be no other type of punishment than deprivation of the right to hold office.
The word "collaborationism" comes from the French collaboration, which means "cooperation." Most often, it is understood as voluntary cooperation between residents of the occupied territories and the occupiers. However, Oleksandr Marin emphasizes that Ukrainian legislation still does not define what collaborationism is.
"We have not named the main thing - we have not named the generic features of this phenomenon, that is, what is considered collaboration. In this regard, there are a lot of problems in practice. An elementary case: when a citizen of Ukraine passes information to the aggressor state about the location of the military of the Armed Forces of Ukraine, the case law has three options for classification, and all of them are tried in court and reach the Supreme Court," the lawyer explains.
The first obvious collaborators in Ukraine appeared in 2014, but cases against them were considered under other articles - "Actions aimed at the violent change or overthrow of the constitutional order" (Article 109 of the Criminal Code), "Trespass against the territorial integrity and inviolability of Ukraine" (Article 110), or "High treason" (Article 111). The punishment for collaboration (Article 111-1 of the CCU) was introduced only in April 2022, during the full-scale Russian invasion.
The article "Collaboration activities" is classified as a crime against the foundations of national security. There are 11 articles in this section of the Criminal Code, including "High Treason," "Espionage," "Obstruction of the Lawful Activities of the Armed Forces of Ukraine," and others. "Collaboration activities" is the most ‘popular’ among other crimes against national security, according to statistics from the State Judicial Administration of Ukraine. In 2023, the courts considered 2724 cases of collaborationism, and a total of 5843 proceedings on crimes against the foundations of national security were pending.
The lawmakers included various crimes under one article, ranging from denying the fact of Russia's armed aggression to working in occupation administrations, "courts" and "police". In total, as of June 15 2024, Zmina experts analyzed 1442 verdicts delivered since the article came into force. Some documents are prohibited for publication, so they were not included in the statistics.
Denying Russian aggression: how to change the punishment
Above other categories of cases, investigators register and courts pass sentences for publicly denying the fact of Russian aggression - Part 1 of Article 111-1. This is the "lightest" crime. As a rule, this part is used to hold people liable for posts on social media or conversations in the street. If the investigator qualifies the case under Part 1 of Art. 111-1, the court can impose only one type of punishment - deprivation of the right to hold certain positions for a period of 10 to 15 years. Since there is no alternative, this punishment is imposed, in particular, on pensioners, the unemployed, and those who have never worked in the civil service or local government.
"There are so many verdicts because the investigative actions and the trial in these cases are much faster. This is especially true of social media posts: all an investigator needs to do is go to a person's page, look at the post, and take a screenshot. At most, they need to request a textual examination to confirm that specific words indicate support for Russian armed aggression. And with that, the indictment is ready. And since these cases do not involve imprisonment, the defendants are not interested in the process lasting a long time and having to constantly attend hearings," Onysiia Siniuk believes.
According to Syniuk, it would be worth decriminalizing this crime altogether and introducing a lustration procedure for such actions. After all, deprivation of the right to hold certain positions is essentially lustration, but it is implemented through the courts. Oleksandr Marin disagrees with this. In this case, a post on social media in support of Russia would have to be considered treason and would be subject to much heavier penalties.
"Collaboration activities have been separated from high treason. We have a general rule, Article 111 "High Treason," and it has very abstract wording - assisting a foreign state or a foreign organization in subversive activities against Ukraine. If we only exclude the first two parts of Article 111-1, this will not mean that people who have been promoting support for the decisions of the aggressor state will not be held liable at all, they can be lustrated outside the criminal process. In fact, this will not happen, in fact, they will fall under Article 111, treason, because their behavior is assisting a foreign state in subversive activities against Ukraine, supporting Russia in spreading propaganda. And the sanction there is completely different - 15 years in prison or life imprisonment (Part 2 of Article 111 of the Criminal Code - ed.)," Marin explains.
In his opinion, other types of punishment for publicly denying Russian aggression should be envisaged, such as community service or a large fine.
Sentences in absentia: peculiarities of the proceedings
Another notable feature is the number of verdicts in absentia. While cases of denying the fact of aggression (part 1 of Article 111-1) and voluntary occupation of positions in the occupation authorities not related to administrative or economic activities (part 2 of Article 111-1) are heard by courts only in person, the number of in absentia sentences in other categories reaches 75%. For example, on October 2, 2024, the Dnipro Court of Appeal sentenced Leonid Pasichnyk, the leader of the so-called LPR, to 15 years in prison in absentia. The court found him guilty of encroachment on the territorial integrity and inviolability of Ukraine (Article 110(2)), as well as of organizing illegal elections in the temporarily occupied territory and voluntary election to an illegal authority (Article 111-1(5)).
"The ratio of in-person and in absentia trials shows how many people are imprisoned, and how many are just sentenced in absentia, which do not yet bring practical results. After all, what do people want? They want the guilty to be punished and to sit in jail. This, in fact, is not happening," says Onysiia Syniuk.
The legal analyst adds that the in absentia process directly affects the adversariality. Although all cases have lawyers, in absentia cases they often cannot establish contact with the defendant and build a defense strategy. As a rule, defense lawyers in such proceedings can represent the interests of "clients" on a general basis.
Oleksandr Marin agrees with Onysiia Syniuk's opinion but notes that this is an insurmountable drawback of trials in absentia.
"If we use it in principle, we perceive it as a necessary evil. As for me, there is nothing to be done about it," the scholar believes.
0.2% judgment of acquittal rate: what it means
In 2023, 793 people were convicted in cases of collaboration, and 2 were acquitted. Cases against another 124 defendants were either returned to prosecutors, closed, or sent back to the courts for jurisdiction. That is, according to official statistics from the State Judicial Administration, there were only 0.2% of judgments of acquittal in 2023.
"This is a symptom of a system that works on the principle that if there is a judgment of acquittal, then prosecutors did something wrong and the public prosecution did not work properly. And if there are few judgments of acquittal, then everyone did a very good job and there is nothing to complain about. Another problem with the article "Collaboration Activities" is the way it is worded. The article allows to bring to liability for very different actions. And there is not much room for error - for example, that the qualification is incorrect or there is no corpus delicti," explains Onysiia Syniuk.
Oleksandr Marin adds that a judgment of acquittal is indeed a failure for the prosecution.
"It is the criminal prosecution itself that significantly restricts the rights of the accused or suspect before the verdict. Accordingly, this lengthy process cannot be unreasonable - the public prosecution should be responsible for the quality of the procedures. If the court acquits the judgment of acquittal, especially if the investigation has committed violations that make it impossible to pass this verdict, it is a real failure. The court should be independent, objective, impartial and make decisions based on the evidence that is introduced. If the prosecution did its job poorly, then they can be acquitted. If the prosecution did a good job, proved the guilt, then the court will hand down a guilty verdict," the PhD in Law said.
Sentences for rescuers and utilities: assessments
Zmina's analysts also found 11 sentences for rescuers and 18 for utility workers in the register. For example, during the occupation of the city of Lyman, Oleksandr K. got a job as a driver in a fire and rescue unit that was subordinated to the so-called "Ministry of Civil Defense, Emergencies and Disaster Relief of the DPR". He went on rescue operations to neighboring settlements. The driver's position is a non-managerial one, so under Part 2 of Article 111-1, the court deprived Oleksandr of the right to hold positions in state authorities and institutions of the Main Directorate of the SES for 12 years.
Both experts emphasize that, according to international law, the performance of vital functions in the temporarily occupied territories should not be subject to criminal liability.
"The duration of the occupation affects how we should perceive collaboration activities. It is simply impossible not to interact with the occupation authorities for two and a half years. And vital functions in the occupied territories must be performed. When we talk about the functions of firefighters, rescuers, and utility workers, what is the component of harm to national security in this? " says Onysiia Syniuk.
Oleksandr Marin adds that the issue of rescuers and utility workers in the occupied territories should be resolved by a clear definition of collaboration - if it will be added to the law.
"There are two main signs of collaboration. The first is activities committed under occupation or using the conditions of occupation. And the second is activities aimed at harming the interests of Ukraine or Ukraine's allies, that is, the direction of behavior. Neither rescuers, nor utility workers, nor doctors who do not harm the interests of Ukraine in any way by their work in the occupied territories can be held liable for collaboration, even if they work in quasi-governmental institutions," the lawyer says.
Amendments to the law on collaboration: why they are not being adopted
Over the past two years, the Verkhovna Rada has registered at least 11 draft laws that contain amendments to the legislation on collaboration. The Zmina Human Rights Centre analyzed them.
"Most of these draft laws do not address the problematic issues of applying the provisions of Article 111-1 of the Criminal Code of Ukraine. At the same time, none of these draft laws fully take into account the practice of applying Article 111-1 of the Criminal Code of Ukraine, as well as the long-term occupation of the territories - for more than two years, and some territories - for more than ten years," the authors of the report "Survival or Crime: How Ukraine Punishes Collaborationism" concluded.
Oleksandr Marin highlights one of the options - draft law No. 7570, which provides for various types of punishment for public calls to support the decisions or actions of the aggressor state and other types of information cooperation with the occupier. Namely, up to two years of corrective labor, up to six months of detention, or up to three years of imprisonment. According to the lawyer, this draft law could address the issue of limited punishment options for justifying Russian aggression. However, the scholar adds, the Verkhovna Rada is in no hurry to amend the legislation on collaborationism, as many questions will arise immediately—such as whether the new law will have retroactive effect, how the severity of the crime will be redefined, and so on.
Hryhorii Pyrlik
