Criminal Responsibility for Collaborationism

What is collaborationism?

On 15 March 2022, a new crime establishing criminal responsibility for collaborationism was introduced in the Criminal Code of Ukraine. The main aim of such changes is to bring to responsibility individuals and legal entities facilitating the aggressor state. Article 111-1 of the Criminal Code of Ukraine qualifies the following actions as collaborationism:

1. public denial of armed aggression against Ukraine, establishment and introduction of temporary occupation of the territory of Ukraine or public appeals to support decisions and/ or actions of the aggressor state, cooperation with the aggressor state, and non-recognition of the extension of the state sovereignty of Ukraine to the temporarily occupied territories of Ukraine;
2. voluntary holding a position not related to the performance of organizational or administrative functions, in illegal authorities established in the temporarily occupied territory, including in the occupation administration of the aggressor state;
3. propaganda in educational institutions in order to promote armed aggression against Ukraine, establishment and introduction of temporary occupation of part of Ukraine, avoidance of responsibility for the aggressor state's aggression against Ukraine, implementation of educational standards of the aggressor state in educational institutions;
4. transfer of material resources to illegal armed or paramilitary formations established in the temporarily occupied territory and/ or armed or paramilitary formations of the aggressor state, and /or conducting commercial activities in cooperation with the aggressor state;
5. voluntary holding a position related to the performance of organizational or administrative functions in illegal authorities established in the temporarily occupied territory, including the occupation administration of the aggressor state, or voluntary election to such bodies, as well as participation in the organization and conduct of illegal elections and/ or referendums in the temporarily occupied territory or public calls for such illegal elections and/ or referendums in the temporarily occupied territory;
6. organizing and conducting political and/ or information activities in cooperation with the aggressor state aimed at supporting the aggressor state or avoiding responsibility for armed aggression against Ukraine;
7. voluntary holding position in illegal judicial or law enforcement bodies established in the temporarily occupied territory, as well as voluntary participation in illegal armed or paramilitary formations established in the temporarily occupied territory and/ or in armed formations of the aggressor state assistance in conducting hostilities against the Armed Forces of Ukraine and other military formations formed in accordance with the laws of Ukraine, volunteer formations that were formed or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine.

What punishment may be imposed for performing the collaborative activity?

Article 111-1 of the Criminal Code of Ukraine establishes different types of punishment for collaboration. Depending on a particular corpus delicti, the collaborative activity shall be punishable by fines, deprivation of the right to occupy certain positions or engage in certain activities, correctional labour, arrest, imprisonment for up to 15 years, or even life imprisonment (with or without forfeiture of property).

Who can bear criminal responsibility for collaborative activity?

In most cases, only nationals of Ukraine can be found guilty of collaborative activity. However, there are acti reus (please see paras. 4 and 6 above) that can be committed by any individual irrespective of his/ her nationality. This means that – if foreign nationals and/ or stateless persons transfer material resources to, conduct an economic activity with the aggressor state (its armed or paramilitary formations) or organize/ conduct political and/ or information activities in cooperation with the aggressor state aimed at supporting it – they will be subject to criminal responsibility regardless of their nationality and place of residence.

What responsibility do the legal entities bear?

Under general rule, legal entities cannot bear criminal responsibility. At the same time, the Criminal Code of Ukraine establishes certain instances when legal entities can be subject to criminal law measures. In particular, collaboration with the aggressor state is a crime that envisages their application. Thus, if an individual, acting on behalf of a legal entity, commits a crime prosecuted under Article 111-1 of the Criminal Code of Ukraine, such individual (director, accountant, or any other authorized person) will bear criminal responsibility and the legal entity will be subject to criminal law measures (fine, compulsory winding up, and forfeiture).

Authors:
Kristina Shyposha, Senior Associate, Attorney
Marta Hrunska, Senior Associate, Attorney