Ukraine’s Plan to Prosecute Collaborators
New legislation remains open to interpretation by law enforcement agencies and judges.
Nearly 2,000 cases of treason and collaboration with the Russian army have been opened against Ukrainian citizens. Mykyta Petrovets, a lawyer at the Kyiv-based Regional Centre for Human Rights, told IWPR’s Svitlana Morenets that prosecuting collaborationism in Ukraine will be legally complex.
What does the term collaborationism entail?
Article 111 of the Criminal Code of Ukraine (CCU) addresses collaborationism, as it defines high treason as an act wilfully committed by a citizen of Ukraine that can include joining the enemy under martial law or armed conflict, espionage, assistance in subversive activities against Ukraine provided to a foreign state, a foreign organisation or their representatives.
How was collaborationism prosecuted in Ukraine before Russia’s full-scale invasion this February?
Despite eight years of Russian aggression [in the eastern Donbas region], Ukraine’s criminal system did not have provisions about collaborationism until March this year. Drafts to criminalise collaborationism were presented by lawmakers in 2017, 2019 and 2021, but they were unsuccessful.
Until March 2022, collaborationism was prosecuted under three articles of the CCU. Under these provisions there are 96 open investigations under Article 109, about actions aimed at forceful change or overthrow of the constitutional order or takeover of government. A further 8,567 investigations are ongoing under Article 110, which regulates trespass against Ukraine’s territorial integrity and inviolability. An additional 1,544 investigations are open under Article 111, about high treason.
What has changed since the full-scale Russian invasion?
On March 15 2022, the CCU was updated with article 111-1 to prosecute “collaborative activity”. It aims to criminalise acts that facilitate Russian aggression and armed conflict against Ukraine and “to ensure fair punishment for persons that cooperate with an aggressor-state and to deprive them the right to occupy certain positions or engage in certain activities”.
On April 23 2022, the CCU was updated with article 111-2. The Accessory to Aggressor-State article aims to criminalise support to Russia in carrying out aggression and armed conflict against Ukraine and “to ensure fair punishment for accessory to aggressor-state and to deprive the right to occupy certain positions or engage in certain activities”.
What is the difference between provision 1 and 2 of article 111?
The basic idea is the same, I would say they complement each other. Paragraph 2 describes accessory to aggressor-state, paragraph 1 a collaborative activity; they use the different terminology of facilitation/cooperation and support/accessory.
Article 111-1 criminalises actions of setting the temporary occupation of a part of the territory of Ukraine, transferring material resources to unlawful armed or paramilitary groups of aggressor-state or which were created on the temporarily occupied territory of Ukraine.
Article 111-2 criminalises acts that execute or support decisions and actions of the aggressor-state, its occupation administration or armed groups, transfer of resources or assets to representatives of the aggressor-state.
The difference is the perpetrator. In the first, article 111-1, the perpetrator is a citizen of Ukraine, but a perpetrator in the case of article 111-2 is anyone except a citizen of Russia.
Currently, there are 1,726 open criminal investigations related to Article 111-1 and 105 related to article 111-2.
What is the difference between the prosecution for forced and voluntary collaboration with the enemy?
The CCU’s Article 40 details exceptions to a criminal action because of physical violence or mental coercion, like threats or physical violence, including directed to relatives. Essentially, the criminal act must be done voluntarily.
However, only direct physical coercion - which renders a person unable to be in control of their actions with imminent danger - excludes the criminality of an act. The criminal code’s Article 39 states that if a person acts under mental coercion or physical coercion, but is able to be in control of their actions, it requires an assessment of the extreme necessity of acts.
We have to find a fair balance between two issues. It depends on the harm that was made to the person and by that person.
In Article 111-1 there are some differences regarding the voluntary nature as it indicates that some acts suppose that a person must act voluntarily, but others do not have the word “voluntarily” at all.
It is a tricky question, because we do not know how law enforcement agencies and judges will interpret it.
What should people do when they are forced to cooperate with Russia? What options do they have when they live in the occupied territories?
I believe a person should leave occupied territory [given the risk of] coercion by Russia and the danger to their life and safety. It is the best option while waiting for Ukraine’s armed forces to liberate these areas and it safeguards the individual from difficult interpretations of the CCU. But we understand that not everyone can do it.
If someone is forced to cooperate with the Russia-appointed authorities or military, they should try to gather some evidence of what they were doing, who forced them, what were the consequences etc. For example, to note the name and contacts of witnesses of coercion, to take photos, audio or video of different orders of occupational administration, soldiers that show the context of coercion.
This information gathering is dangerous. A person can be seen by Russian soldiers, other collaborators…. We consider that leaving the territory is still a better option.
It is important to hire a Ukrainian attorney and have legal consultation. It is not recommended to show all evidence to law enforcement agencies before such a consultation. Other recommendations depend on the individuals’ position and their duties. Despite such recommendations, we cannot guarantee excluding criminal responsibility.
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