Act’s description and legal basis
The Law amends the Criminal Code of Ukraine by adding Article 436-2. Overall, the Article criminalizes two main activities:
- Firstly, it is prohibited to justify, recognize as legitimate or deny the armed aggression of Russia against Ukraine, which started in 2014 (including its description as an internal civil conflict) or temporary occupation of certain Ukrainian territories.
- Secondly, the Law forbids glorifying Russian persons that took an active part in armed aggression, including illegal armed formations, armed gangs, and groups of mercenaries operated by the Russian Federation as well as representatives of the Russian occupational administration.
Sanctions for such conduct constitute corrective works for up to 2 years, or arrest for up to 6 months, or imprisonment for up to 3 years. If such speech is contained in the physical materials or products, their production and distribution are punishable by imprisonment for up to 5 years, with or without confiscation of property.
The Article also prescribes aggravating circumstances, such as the commission of the crime by an official, or repeatedly, or by an organized group, or with the use of media. In such a situation, stricter sanctions are provided – the deprivation of liberty for 5 to 8 years, with or without confiscation of property.
Consequences
Since the full-scale invasion, Ukrainian legislators had to act quickly to eliminate the existing loopholes allowing the flow of the aggressor-State propaganda. This barrage of legislative activities resulted in the collision of the Law’s provisions with other Articles of the Criminal Code. Article 111-1 on collaborationism prescribes an almost similar objective element of the crime, namely “public denial by a citizen of Ukraine of the ongoing armed aggression against Ukraine and the temporary occupation of part of the territory of Ukraine”. The said Article, though, provides sanctions, which significantly differ from Article 436-2. Therefore, by publicly justifying Russian aggression on the Internet, one person may face only the corrective works (under Article 111-1), while another may be deprived of liberty (under Article 436-2).
Currently, the domestic courts tend to resort mostly to Article 436-2. For instance, the court sentenced a man under Article 436-2 to deprivation of liberty for five years for publicly justifying the Russian aggression and calling the Russian occupants “liberators”. However, in a similar case, where the man and woman justified the Russian invasion of Ukraine and the actions of Russian occupants, the court sentenced them under Article 111-1 to deprivation of the right to hold positions related to organizational, administrative, and economic functions in state and local bodies for ten years. Therefore, both Articles need to be amended to ensure the unified application of the norms and coherent court practice.
Further, the courts’ practice sometimes treats the mere use of the Internet for disseminating prohibited speech as an aggravating factor of media usage, which has been a negative tendency since at least 2014. Analysis of the case-law demonstrates that the most common way of committing a crime was by spreading information via social media. Noticeably, in such cases, judges do not conduct case-by-case analysis by considering the perpetrators’ audience, the privacy settings of their pages, or their popularity. Experts from Human Rights Platform in their report emphasize that when dealing with likes or reposts of the disputed content, judges fail to substantiate their decision with proof that such activity may lead to negative consequences and have an effect on the social media audience. All this evidences the need to either eliminate such an aggravating circumstance as the use of media for the purposes of Article 436-2 (2) of the Code or design some alternative penalties when qualifying the case under the provision.
After the adoption of the Law, enforcement of its provisions resulted in more than 313 court decisions. In most cases, judges take into account the admission of guilt by the perpetrator to mitigate the punishment. Thus, as of 24 February 2023, most perpetrators, namely 281 persons, were released on probation. As for the rest, 18 persons were deprived of liberty, 3 were fined, 6 were arrested, 2 were deprived of liberty with the additional confiscation of their property, 1 person was acquitted, and 2 persons were subjected to corrective action works and restriction of liberty, respectively. Conclusively, the court’s practice demonstrates that the enforcement of the measures is effective overall and currently does not lead to any disproportionalities.