Expectedly, the beginning of a new phase of the Russian-Ukrainian war could not but cause significant changes in Ukrainian legal framework. MPs have not overlooked the Criminal Code – over two months of the war, they adopted 10 laws on amendments to the Code.
In particular, they intensified responsibility for some crimes against the fundamentals of national security; for the production and dissemination of prohibited information products; for the justification, recognition as lawful and denial of the armed aggression of the Russian Federation against Ukraine; for collaborative activities; for theft, robbery, and plunder. The Verkhovna Rada voted for changes to protect the defenders of Ukraine from possible criminal prosecution, and also ensured the right for Ukrainians and all people of good will who are legally staying on the territory of our state to join the protection of Ukraine with weapons in their hands.
However, unfortunately, the President has not yet signed the long-awaited law that improves the definition of war crimes in the Criminal Code and increases responsibility for their commission.
On March, 3, the Ukrainian Parliament adopted 5 laws on amendments to the Criminal Code in connection with the martial law and a new round of aggression of the Russian Federation.
According to the Law 2113-IX , MPs have considerably increased responsibility for some crimes against the national security of Ukraine. Now, treason or sabotage committed under martial law shall be punishable by imprisonment for a term of 15 years or life imprisonment, with confiscation of property.
At the same time, the Law 2110-IX intensified the criminal liability for the production and distribution of prohibited information products. Changes have been made to the often cited Article 161 of the Criminal Code regarding the violation of equality of citizens, where the usual list of grounds (racial, national, religious beliefs, disability) received a regional affiliation, i.e. belonging of a person, by birth or residence, to a region – part of the territory of Ukraine or the territory of the compact settlement of Ukrainians outside the territory of Ukraine – which is different than other territories in a number of historical, geographical, linguistic and other features.
In addition, now an insult to the honor and dignity of a serviceman protecting Ukraine, a threat to a serviceman, his close relatives or members of his family have been established as criminally liable. The country must protect its defenders.
Furthermore, criminal liability will be brought for justification, recognition as lawful and denial of the armed aggression of the Russian Federation against Ukraine, as well as glorification of its participants.
This innovation is closely intertwined with the Law 2108-IX that finally established criminal liability for collaboration with the aggressor state, its occupation administration, armed or paramilitary groups in the military, administrative, political, information, economic, and labor areas. However, it should be noted that Article 111-1 "Collaborative Activities" introduced into the Criminal Code of Ukraine contains unjustified provisions that establish much lower liability for committed violations than the provisions applied before its adoption. For example, now, propaganda in educational institutions promoting armed aggression against Ukraine will qualify under Part 3 of Art. 111-1 of the Criminal Code of Ukraine, which provides for a maximum punishment of imprisonment for up to 3 years, depriving of the right to hold certain positions or engage in certain activities for a period of 10 to 15 years. At the same time, before the adoption of these changes, such a person would be subject to liability under Part 2 of Art. 111 of the Criminal Code of Ukraine (punishment – imprisonment for 15 years or life imprisonment with confiscation of property).
With the adoption of law 2117-IX, theft, robbery, plunder, extortion or the appropriation of property, committed during the martial law or under a state of emergency, amount to crimes committed on a especially large scale or by an organized group of persons. In addition, an increased responsibility for looting has been introduced – criminals will now receive from 5 to 10 years of imprisonment (before the adoption of the law, the stipulated term of imprisonment was from 3 to 10 years).
Law 2114-IX ensured the right of Ukrainians and all people of good will who are legally staying on the territory of our state to participate in the protection of Ukraine with weapons in their hands. These persons are exempt of criminal liability for the use of available firearms or such that was received in accordance with the procedure and requirements established by the Ministry of Internal Affairs of Ukraine against persons committing armed aggression against Ukraine.
As soon as on March 15, the Verkhovna Rada voted for changes to protect Ukraine's defenders from possible criminal prosecution. Law 2124-IX defined the circumstances precluding the criminal wrongfulness of the act and ensuring combat immunity in martial law. In other words, in fact, this law recognized as lawful any actions of a person committed under martial law or during the period of armed conflict, aimed at deterring and fighting back the armed aggression of the Russian Federation or the aggression of another country with any negative consequences for the occupiers, in the absence of signs of torture or the use of means of warfare prohibited by international law, other violations of the laws and customs of war.
Another 4 laws on the improvement of the Criminal Code to take into account the conditions of martial law were adopted by the Parliament on March, 24.
In order to prevent cyberattacks by the aggressor state against websites of state bodies and institutions of Ukraine, Law 2149-IX amended the Criminal Code to increase the effectiveness of the cybercrime counteraction under martial law. Now, for unauthorized interference in the work of information (automated), electronic communication, information and communication systems, electronic communication networks during the martial law, which led to the leakage, loss, forgery, blocking of information, distortion of the process of data handling or violation of the established procedure for its routing, or if they caused significant damage or created a risk of serious technological accidents or environmental disasters, death or mass disease of the population, or other serious consequences, a person will be punished by imprisonment for a term of 10 to 15 years, with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years.
MPs also voted for the long-awaited law 2155-IX designed to repel the profit-making desire of ethically challenged persons who have access to humanitarian aid and wish to benefit from it. The Criminal Code received a new article 201-2. It stipulates that sale of goods (items) from humanitarian supplies or the use of charitable donations, free assistance or other transactions for the disposal of such property, for profit, committed at least in a good-sized amount, shall be illegal. A good-sized amount is when the total cost of such humanitarian aid, charitable donations or free assistance exceed the tax-free minimum income of citizens by at least 350 times (more than UAH 430,000). However, the maximum punishment for this crime is a restriction of freedom for up to 4 years. At the same time, the waste of other people's property in a smaller amount than provided for in Art. 201-2 of the Criminal Code of Ukraine, shall be qualified under Art. 191 of the Criminal Code of Ukraine, which, even under part one, carries a maximum sentence of imprisonment for up to four years, with deprivation of the right to hold certain positions or engage in certain activities for up to three years. In other words, liability under the special rule of Article 201-2 of the Criminal Code of Ukraine has been significantly lessened.
With the Law 2160-IX (amended by Law 2178-IX), the Verkhovna Rada once again tried to combat the unauthorized dissemination of information about delivery and movement of weapons, munition and ordnance to Ukraine, the movement, transportation or deployment of the Armed Forces of Ukraine or other military formations formed in accordance with the laws of Ukraine, committed under martial law or a state of emergency. Now, for such dissemination, a perpetrator, depending on the circumstances and consequences, shall be punished with imprisonment from 3 to 12 years.
It is worth emphasizing another fundamental challenge in the field of legal regulation of war crimes in Ukraine. On May, 20, 2021, the long-awaited Law "On Amendments to Certain Legislative Acts of Ukraine on the Implementation of International Criminal and Humanitarian Law" was adopted, which improves the Criminal Code in terms of the definition of war crimes. Without such changes, it is impossible to ratify the Rome Statute of the International Criminal Court and to bring the occupiers to justice for a number of war crimes. However, the law has not yet been signed by the President or promulgated, although the time set for the application of the veto power has long elapsed. Instead, on April, 15, the Cabinet of Ministers submitted to the Verkhovna Rada a draft law 7290, a sort of reduced version of the above-mentioned law, which significantly decreases the possibility of prosecution for war crimes, in particular, against commanders of units of the occupation army and the leadership of the Russian Federation.Human rights organizations have already started drafting an appeal to encourage the comprehensively finalization of this draft law and include the key proposals of draft law 2679 that was never signed by the President.
Civil Network OPORA will continue to methodically update about amendments to the Criminal Code in the following materials.