Act’s description and legal basis
The Law adds new Article 114-2 in the Criminal Code, which prohibits the spreading of unauthorized information regarding the Armed Forces of Ukraine during martial law or a state of emergency. It is forbidden to disseminate the following types of information on:
- the direction and movement of international military aid (in the form of weapons or military supplies) on and through the territory of Ukraine, unless it has already been publicly disseminated by the General Staff of the Armed Forces of Ukraine, the Ministry of Defense of Ukraine, the Main Intelligence Directorate of the Ministry of Defense of Ukraine, the Security Service of Ukraine or in the official sources of partner countries;
- the movement or location of the Armed Forces of Ukraine or their units if it allows their identification on the ground unless it was already publicly disseminated by the General Staff of the Armed Forces of Ukraine, the Ministry of Defense of Ukraine, or other state authorities.
The commission of the first crime may result in deprivation of liberty for a period from 3 to 5 years, while the commission of the second offense is punishable by the same sanction for a period from 5 to 8 years.
Aggravating circumstances for the crime are the commission of the acts in a prior conspiracy by a group of persons, or with the existence of the beneficial motive, or with the aim of providing the information to the state that wages armed aggression against Ukraine, or to illegal military formations, or if such acts caused severe consequences. The liability increases up to 8-12 years of imprisonment.
Consequences
Since the authorities constantly called upon Ukrainian citizens not to provide any information about the movement of the Armed Forces of Ukraine, but to no avail, the criminalization of posts containing such information led to more effective compliance with the rules and resulted in the responsibility of the violators. After the Law’s adoption, law enforcement commenced approximately 200 criminal proceedings under this Criminal Code provision.
The analysis of the recent case-law demonstrates that the courts primarily assess whether the person acted voluntarily and intentionally and was aware of the consequences of their actions when deciding on the case. The subjective portrait of the violator is taken into account as well: the court analyzes the person’s views and stance on the full-scale invasion of Ukraine and any existing or potential connections between the suspect and Russian citizens. The court usually settles on the minimal sanction imposed if no aggravating circumstances are found.
However, the court can also grant a probation sentence for people who acted without any harmful motive. These are the cases, for example, where the young man recklessly posted the location of Ukrainian planes on social media or where the woman sent the location of the Armed Forces of Ukraine unit in the public chat but then deleted it after realizing the illegality of her actions. In terms of the court’s jurisdiction, most crimes were committed in the East and South of Ukraine, where the influence of pro-Russian narratives is much stronger than in other regions.
In total, as of 1 February 2023, 50 persons were sanctioned and brought to criminal responsibility. Among them, 18 persons were sentenced (usually for 5 years), 2 persons were restricted from the right to hold positions related to the performance of state or local functions, and 27 persons were released on parole. Noticeably, starting from October 2022, the courts became much stricter in imposing punishments. All of such cases, however, concern the intentional and deliberate cooperation of Ukrainian citizens with Russian soldiers. Such a practice may also be related to the escalation of the armed conflict and collaboration with an opposing state to gain the military advantage.
Since the enforcement of the Law deems to be effective, any further amendments or additions to the prohibition should be treated cautiously to exclude the public’s turn to the anonymous social media channels often spreading disinformation.