The CHRG experts have reviewed draft law No 7354 and explained its principal risks and threats.
On December 5 2017 Draft Law of Ukraine ‘On amending certain legal documents of Ukraine (on criminal accountability for denying the fact of military aggression of the Russian Federation against Ukraine)’ # 7354, was registered at the Parliament of Ukraine. The bill was drafted by MPs of Narodny Front Group: Mr Anton Herashchenko, Mr Andriy Teteruk, Ms Tetiana Chornovil and Mr Ihor Lapin.
The explanatory note to the bill states that its purpose is ‘to establish a criminal accountability for denying in public the fact of military aggression of the Russian Federation against Ukraine’ since ‘… denying the military aggression of the Russian Federation against Ukraine the persons concerned justify in fact criminal actions of the Russian authorities aimed at violating the territorial integrity and sovereignty of Ukraine, … eliminating Ukraine as state’. The draft law suggests adding a new clause – Clause 442-1 – to the Criminal Code of Ukraine titled ‘Public Denial of Fact of Military Aggression of the Russian Federation Against Ukraine’ with the following wording:
‘Clause 442-1. Public Denial of Fact of Military Aggression of the Russian Federation Against Ukraine
- The public denial of the fact of military aggression of the Russian Federation against Ukraine’, of the fact of seizing a temporary occupied territory of Ukraine in 2014 due to the military aggression of the Russian Federation as well as production and distribution of files containing such denial shall be punished by a fine of three to ten thousands of non-taxable personal income or imprisonment for up to 5 years.
- The same actions made by officials or made repeatedly shall be punished by imprisonment for up to 5-year’s period.’
First of all, the CHRG experts have paid attention to the bill because it does not consider realities of occupied Crimea and Donbas. Today citizens of Ukraine living in Crimea are subject to the criminal accountability, pursuant to the RF laws valid there de facto, for statements as Crimea is Ukraine, occupation or annexation of Crimea, Russian aggression, etc. They may be imprisoned for up to 5 years pursuant to Clause 280.1 of Criminal Code of RF ‘Public appeals to actions aimed at violating the territorial integrity of the Russian Federation’. And such criminal cases have been in place already (e.g., cases of Mykola Semena and Ilmi Umerov).
Therefore most residents of Crimea have to avoid speaking in public about the RF aggression against Ukraine, and in certain cases, for instance, when asked by the media, have to deny in public the aggression or to use other terms that could be subjectively interpreted as ‘denial of military aggression fact’. The suggested Ukrainian bill does not consider this and stipulates a criminal prosecution for this, similarly to the Russian sanction – imprisonment for up to 5 years. The situation is even worse in the Donbas occupied areas where saying something that may be disliked by the representatives of unlawful paramilitary units and unlawful bodies of DNR and LNR de facto authorities may not only result into imprisonment, the person may be forced to disappear.
The CHRG sees serious risks for respecting human rights if these amendments come in force. Lawyer Yuriy Hryshyn, a CHRG expert, states the following:
‘First of all, the bill should not contradict democratic standards and fundamental human rights or reduce them, for instance, the European Standards on Freedom of Expression (Convention for the Protection of Human Rights and Fundamental Freedoms, article 10).
Secondly, the disposition of Clause 442-1.1 ‘Public Denial of Fact of Military Aggression of the Russian Federation Against Ukraine’ does not correspond to the legislative concept of ‘crime’ based on the criterion of differentiating a legal accountability of person for the violation of law due to the nature of its danger to the public (Clauses 11 and 12 of CC of Ukraine).
Such position is of absolutely illogical social and legal nature since everyone knows that violation of law in any society is a social and legal opposite to the good behavior.
All violations of law have attributes that help to distinguish them from any other social phenomena. Generally, this means that violation of law is a guilty, wrongful, public prejudicing action of eligible and legally capable person or persons that shall cause a legal accountability specified by the laws.
The nature of danger to the public is a qualitative indicator of the social danger of any violation of law that defines a level of legal accountability for this act to the state. It is this criterion that allows for distinguishing crimes and misdeeds in the system of individual legal accountability (Clause 11 of CC of Ukraine). The authors of Bill No 7354 have no ground to neglect this methodological approach to construct legal norms stipulating a legal accountability of persons for their actions and criminalizing all kinds of person’s public denial of the fact of RF military aggression against Ukraine.
Based on this, it is rather obvious that the explanatory note to the bill does not present a substantial justification on introducing specifically criminal, not another, for instance, administrative or disciplinary, accountability, for denying in public the fact of RF military aggression against Ukraine.
Thirdly, the sanction of CC Clause 442-1.1 (as drafted) suggests an imprisonment for up to 5 years as one of basic alternative punishments, while the sanction of Clause 442-1.2 (as drafted) suggests the same punishment as basic one.
However, reviewing sanctions of CC Clause 436-1 ‘Production and Distribution of Communist, Nazi Symbols and Propaganda of Communist and National Socialist (Nazi) Totalitarian Regimes’ (in the valid version of Criminal Code of Ukraine), the Venice Commission and the OSCE/ODIHR stated:
‘Bearing in mind that both the European Court of Human Rights and the CCPR consider even the threat of custodial sentences for non-violent expression to be inappropriate … In the Case of Murat Vural v. Turkey, the European Court of Human Rights clearly stated that, in principle, “peaceful and nonviolent forms of expression should not be made subject to the threat of imposition of a custodial sentence”.
‘Together with the lack of foreseeability stated above, these drastic penalties are otherwise likely to produce what the European Court of Human Rights refers to as a “chilling effect”, potentially stifling the exercise of freedom of expression in general and of political speech in particular throughout society. Rather than protect the dignity of victims and prevent the return of a totalitarian regime, this might effectively discourage people from engaging in public affairs.’
In line with the above mentioned position of the Venice Commission, Office for Democratic Institutions and Human Rights and the European Court of Human Rights, the CHRG experts consider that imprisonment for a certain period introduced in CC Clause 442-1 sanctions (as drafted) is not justified.
In addition, as Ms Olha Skrypnyk, the CHRG coordinator, thinks, it is unclear how this suggestion correlates with the international humanitarian law. For instance, the Prosecutor’s Office of International Criminal Court uses ‘the military conflict’ term, not the RF aggression, regarding Ukraine. The laws of Ukraine apply also the ‘Anti-Terrorist Operation’ term, and the relevant law does not include the ‘Russian Federation Against Ukraine’ concept.
An unjustified criminalization of statements has no positive impact at all on promoting the peaceful remedial actions after the war and the occupation, but just the other way round – heightens a social tension in the Ukrainian society.
That being said, the CHRG experts are sure that the MPs must reject voting for draft law No 7354 ‘On amending certain legal documents of Ukraine (on criminal accountability for denying the fact of military aggression of the Russian Federation against Ukraine)’.
 Paragraph 93 JOINT INTERIM OPINION ON THE LAW OF UKRAINE ON THE CONDEMNATION OF THE COMMUNIST AND NATIONAL SOCIALIST (NAZI) REGIMES AND PROHIBITION OF PROPAGANDA OF THEIR SYMBOLS Adopted by the Venice Commission at its 105th Plenary Session Venice (18-19 December 2015) http://www.osce.org/uk/odihr/216291?download=true
 The same. Paragraph 95