How Ukraine plans to prosecute those collaborating with Russia
Over the course of the war, Ukraine’s SBU security service investigated about 8,000 criminal cases of collaboration with the enemy. But if current laws are not amended, people in liberated Ukrainian territories will be subject to prosecution for even the most innocuous misdeeds.
Currently, a few dozen people in Kyiv are deciding the fate of millions of Ukrainians: residents of the already liberated areas of the country, as well as the still-occupied Crimea and Donetsk, Luhansk, and southern Zaporizhzhya and Kherson oblasts.
NV examines the work of the Verkhovna Rada (Ukrainian parliament) Committee on Law Enforcement as they try to provide clear legislative answers to two key questions: who is a collaborator, and how they should be punished?
Two articles
Since last March, everything concerning high treason and cooperating with the enemy has actually been regulated by just two articles of the Criminal Code of Ukraine (CCU). These articles do not adequately cover the full spectrum of nuances of this complex topic.
At the beginning of the full-scale invasion, the Rada amended the CCU, increasing criminal liability for collaborationist activities for violations of Articles 111−1 and 111−2. These articles guide the actions of the law enforcement agencies responsible for identifying and investigating cases of treason and cooperation with the occupiers.
These articles almost duplicate each other and provide punishments in the form of imprisonment, being barred from certain posts, and/or fines for a whole series of actions. These actions include public denial of the armed aggression against Ukraine, public appeals to support the actions or decisions of the aggressor state, voluntarily occupying positions in illegal authority bodies, propaganda in educational institutions, introduction of the aggressor state’s education standards, transfer of material resources to illegal armed or paramilitary formations in temporarily occupied territory, and supporting the occupiers through actions like the organization of political events or distribution of information on their behalf.
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While there are no discussions regarding the punishment of people involved in murders, torture, rape, and aiding and/or abetting the Russian military in occupied territories, the SBU has been working carefully on this topic. However, when it comes to how to handle employees of educational institutions and state enterprises, as well as how to define the concept of "coercion", there are many conflicting opinions.
"The articles are vaguely written; in fact, they allow you to individually decide who is considered a collaborator and who is not. It remains at the discretion of the investigator," an anonymous SBU source explained to NV.
Tens of thousands of people from the occupied territories, if not more, are potentially subject to the two "treason" articles due to their mentioned "breadth."
This is exactly the issue which members of the Verkhovna Rada Committee on Law Enforcement are taking on in their efforts to improve Ukraine’s legislation on collaborationist activities.
Some committee members admitted off the record in interviews with NV that the existing CCU articles were written hastily to respond to the threat early in the invasion.
A proposed bill
This October, a Rada working group presented Bill 10136, which was co-authored by representatives of almost all parties in the parliament. The document strengthens criminal liability for various types of treason.
For example, instead of the current punishment in the form of a ban on holding certain positions for up to 15 years for publicly denying the war or publicly calling for support for Russia, the bill proposes a fine of UAH 51,000–85,000 ($1,410–$2,340) or imprisonment for up to three years.
The bill’s authors want to increase the punishment for voluntarily taking positions not related to the performance of organizational and administrative duties in the aggressor’s occupying administration to imprisonment of up to three years or a fine of up to UAH 102,000 ($2,810).
There are already about 7,000 such cases. With the proposed measures, according to human rights activists, it will be possible to punish and imprison even more people under these articles.
"Article 111−1 is not very well written. Most of the judgments that are now in the register of court decisions — and there are almost 700 of them — are based on the first and second parts of this article. Sanctions for them are restrictions on the right to hold certain positions. Lawmakers have now introduced imprisonment [as punishment]. From a practical point of view, these are the easiest articles, because you can just look at people’s pages on Odnoklassniki [a Russian social media blocked in Ukriane], and a person could be charged for liking or sharing a post," explains Alyona Lunyova, director of advocacy at the Zmina Center for Human Rights.
NV asked the State Criminal Enforcement Service for clarification on the number of cases under these articles, but they did not respond in time for publication.
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Instead, the SBU told NV that since the beginning of the war, its investigators have already investigated more than 7,000 criminal proceedings under Article 111-1.
"Almost 2,900 people have become persons of interest [2] in these cases. More than 2,000 proceedings against almost 2,100 persons have been sent to the courts, which have already handed down sentences to 330 collaborators. One of the most recent is 15 years in prison for Volodymyr Saldo, the ‘gauleiter’ of Kherson Oblast, who heads the local occupation authority," our source said.
As for Article 111−2, the SBU has investigated almost 1,000 criminal proceedings against more than 300 people under it. Almost 200 cases were referred to the courts.
Who gets a fine, and who gets jail time
Human rights defenders stress that increased penalties will not solve the problem of the present individual approach to determining who is a collaborator and who is not, and who should be fined and who should be sent to prison.
"The Criminal Code has Article 436−2 — glorification of the actions of the Russian army or supporting the occupiers. It already mandates imprisonment. That is, a law enforcement officer must choose for themselves: either the case should be classified under the first part of Article 111−1, which mandates a restriction of the right to hold positions, or will they be imprisoned instead. This is an exclusively human factor," Lunyova notes.
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The office of Tamila Tasheva, the presidential representative for Crimea, explained to NV that, according to their calculations, on the temporarily occupied peninsula alone there are about 200,000 people who could be punished for collaborationist activities under these articles. This is why clear criteria are needed to determine the guilt in each of those cases.
"Because [Ukrainian] authorities seem to be saying: we will not imprison everyone, but we will figure out who we will imprison later. And this is a basis for Russian propaganda. What will be done with the people who paid taxes in those territories? Some law enforcement officers interpret this as economic activity, while some do not. Or with the employees of [state nuclear operator] Energoatom? Or with people who sowed crops? The president said that it was necessary to do, but it is a crime, because it is an economic activity," says Lunyova.
However, MPs who spoke to NV assured that it will be quite easy to figure out where actions were taken to ensure survival, and where economic activities were undertaken in the interests of the aggressor.
But even the authors of the bill have not yet figured out what to do with teachers in temporarily occupied territories.
Lawmakers currently propose extending responsibility not only to those who introduced Russian education practices and standards, but also those who implemented them. According to this definition, all teachers in Crimea fall under the scope of the article.
"How can one prove such actions? If we come to a school and there are Russian textbooks, then we have proven both introduction and implementation" one of the authors of the bill explained off the record.
As for doctors, they are protected by international law from persecution. However, all people who held administrative and managerial positions in medical institutions may be held accountable.
Another problem is proving how "treasonous" actions took place: were they under coercion, or done of a person’s own free will?
"For example, parents who gave permission for their children to go to Russia or Crimea to [summer] camps could also be considered collaborators. Children over 16 who voice Russian narratives drilled into them in schools could also be punished. There is the story of a woman who was raped by a Russian soldier and did not resist. She didn't do so because Russian equipment and weapons were nearby, but she could also be considered a collaborator. And some victims are already being interrogated as potential accomplices," explained one human rights activist who asked not to be named.
Different conditions require different approaches
Tasheva’s office emphasized the difference in the situations across temporarily occupied Ukrainian territories.
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"The duration of the occupation should be taken into account. During almost 10 years of occupation of Crimea, a large number of people interacted with the occupation administrations in one way or another. We are telling the international community that we do not recognize what is happening in the temporarily occupied territory or the distribution of Russian passports. But if Article 111-1 is formally applied to Crimea, it will mean that potentially a large number of people will be held accountable," says Olha Kuryshko, a deputy of Tasheva.
According to Kuryshko, persons who held managerial positions or made decisions that led to human rights violations should certainly be brought to justice.
"People should not be afraid of being held legally responsible for the mere fact of living in temporarily occupied territory. If you have a bakery that sells bread to people, then we don't see criminal intent," she adds.
The representative’s office also says that everyone who committed a crime should be punished, regardless of their nationality, whether they are Crimean Tatar or someone else.
Human rights defenders also emphasize the need to introduce a lustration mechanism.
Building a better state
The bill also aims to prevent collaborators from participating in Ukrainian politics for the next decade. The document increases the term of removal of criminal records even for light collaborationist crimes. After all, as one of the authors of the project explained, "if Ukraine cannot bring the collaborators to justice, then we will not be able to build a strong Ukrainian government, and the risk of lynchings increases."
"At the same time, according to the Criminal Code, punishments do not only consist of prison time: there are also fines and a ban on holding certain positions. The draft law in the first three parts of Article 111−1 focuses primarily on fines. When it comes to serious crimes bordering on treason — when a person works in the occupying administration, security, or military structures of the occupier — of course, imprisonment is on the table. But there are not tens of thousands of such people. There are fewer of them. Plus, the experience of de-occupation last year suggests that they are the first ones to flee to Russia," explained Andriy Osadchuk, first deputy head of the Committee on Law Enforcement.
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So far, none of the lawmakers are ready to predict when the draft law will be put to a vote.
"This document has been lying around for several months, and these are late decisions. Then we consulted with the President's Office about it, and there is a narrative that we should enter the liberated territories gently. This is exactly what has been relayed by our official representative in Crimea. And for them, the bill is too strict," one of the lawmakers explained to NV.
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