Act’s description and legal basis
In April 2015, the Parliament adopted four laws aimed at the systemic decommunization of society. The laws covered such domains as opening archives of the Communist repressive law enforcement bodies, recognizing the struggle of fighters for Ukrainian independence in the 20th century, focusing on the victory over Nazism during the Second World War of 1939-1945 instead of heralding the Great Patriotic War 1941-1945. One of these four laws concentrated on content restrictions and prohibited publishing certain materials in various domains. The relevant amendments were inserted in the Criminal Code of Ukraine, the Law of Ukraine “On Printed Media (Press) in Ukraine”, and the Law of Ukraine “On Television and Radio Broadcasting”.
The Law prohibited propaganda for the Communist and Nazi regimes and their symbols. It was defined as “public denial, in particular in mass media, of the criminal nature of the Communist totalitarian regime of 1917-1991 in Ukraine, National Socialist (Nazi) totalitarian regime, dissemination of information oriented to find excuses to the criminal nature of the Communist and National Socialist (Nazi) totalitarian regimes, activities of the Soviet state security bodies, establishing Soviet rule in the territory of Ukraine or on its individual administrative territories, persecution of the fighters for independence of Ukraine in ХХ century, production and/or dissemination and public use of the products containing the symbols of the communist and national socialist (Nazi) totalitarian regimes”. Its dissemination by the audiovisual and audial media was outlawed and became punishable by the National Broadcasting Council (the NBC).
The Law further defines the list of prohibited symbols. It establishes several exceptions prescribing the legitimate use of such symbols. It is allowed:
- in museums and exhibitions;
- in works of art created before the Law entered into force;
- on memorials located within graveyards or on graves of honor;
- in private collections and private archives;
- within the antique trade;
- during the reconstruction of the historical events;
- in teachers’ or students’ books, other materials of research and education;
- in works of art created after the Law entered into force, if such use does not result in the propaganda of criminal nature of these two regimes.
The Criminal Code of Ukraine was supplemented by the new Article 436-1, prohibiting the production and dissemination of communist and Nazi symbols in the form of souvenirs, public performance of the anthems of USSR, Ukrainian SSR (USRR), other Soviet republics, or their fragments, excluding the liability regarding the abovementioned exceptions. The crime is punishable by imprisonment of up to 5 years with or without property confiscation.
Article 436-1(2) of the Code 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 10 years, with or without confiscation of property.
The Law of Ukraine “On Media” also prohibits such propaganda of the Communist and Nazi regimes. This breach qualifies as a significant violation of the law. It may result in fines, differentiated by the stakeholder status:
- linear audiovisual media services (TV and radio) may face a fine reaching 10% of their license fee or between 5 and 40 minimal wages (33,500-268,000 UAH or 840-6,700 EUR as of March 2023);
- non-linear audiovisual media services (on-demand services) may face a fine reaching between 30 and 40 minimal wages (201,000-268,000 UAH or 5,025-6,700 EUR as of March 2023);
- online and print media may face a fine reaching between 5 and 10 minimal wages (33,500- 67,000 UAH or 840-1,680 EUR as of March 2023).
When determining the sum of the fine, the NBC shall consider the technology applied, territorial coverage, and other relevant aspects that make the violation more threatening to public order. In case an audiovisual media service provider commits any second significant violation in a year, it will be subjected to a doubled fine, while 6 significant violations per year will lead the NBC to apply to a court demanding the license revocation or registration cancellation. A similar system applies to print media, though the NBC can cancel their registration directly after 5 significant violations per year. This does not lead to this media’s closure since the print media registration is not obligatory. A system of penalties for non-compliance by online media depends on its status (registered, non-registered, or anonymous), and the violations are counted monthly.
Consequences
The bans enshrined in the decommunization legislation provided a basis to combat programs that manipulated by historical facts. To exemplify, the NBC issued a warning to the channel broadcasting the statements denying the wrongfulness of prosecuting Ukrainian freedom fighters in 2016. Another TV channel was warned in the same year for equating the same fighters with the Nazis, thereby repeating the typical Communist rhetoric.
Violations of the prohibition on public display of Communist symbols often had seasonal character, connected to the 9th May events. For instance, the NBC applied a warning to the local TV channel in 2021 for demonstrating the Communist symbols as a part of its news broadcast on Victory Day. However, Ukrainian courts try to diminish the adverse effects of overly severe sanctions by applying milder penalties. For example, two years of imprisonment were converted into one year of probation in two cases of public use of communist symbols.
The full-scale Russian invasion of Ukraine in 2022 changed the assessment of the proportionality of decommunization measures. For instance, in the case of the massive management of websites that contained propaganda of Soviet communist and current Russian regimes in times of open military aggression of Russia, the penalties may proportionately go to their upper limits. In any case, even after the start of the full-scale invasion, the courts imposed relatively less severe sanctions compared to the upper limits prescribed by law (for example, in Rivne, Lviv, Ivano-Frankivsk, and Poltava regions).
Nevertheless, legislative amendments are necessary to mitigate any potential risks of prolonged imprisonment for speech not involving calls for violence. The modifications of the Criminal Code provisions shall eliminate the use of media as an aggravating circumstance and concentrate on the other elements of the Communist and Nazi regime propaganda instead of the use of symbols.
On an international level, some post-Communist countries like Lithuania and Latvia had also implemented a ban on communist symbols. Some countries had enacted legislation banning communist symbols, but eventually, those laws were reversed by the respective Constitutional Courts (Czechia, Slovakia, Poland, Hungary, and Moldova). The Constitutional Court of Ukraine had, however, confirmed the constitutionality of the analyzed law in Ukraine.
Some countries tried to introduce a ban on communist symbols, but those initiatives were not fruitful (Estonia, Bulgaria, Georgia). Some countries have a rather general prohibition of totalitarian organizations. In Germany, the ban covered only symbols related to the hammer and sickle, red star, and red flag when used as emblems of the Communist Party of Germany. The discussion surrounding the necessity of similar bans in light of the ongoing armed aggression where the aggressor state actively uses red stars and Lenin’s monument to mark its territories of influence shall continue.