Criminal liability for collaboration as a new challenge of today

Abstract

The article states that today in Ukraine the problem of criminal legal counteraction to collaborationism has finally received a proper legislative solution. The Verkhovna Rada of Ukraine has tried seven times to solve this problem in the relevant draft laws of Ukraine. And only the beginning of the open large-scale armed aggression of the Russian Federation against Ukraine prompted the Verkhovna Rada of Ukraine to implement one of these options to criminalize collaboration activities. The article considers Art. 111-1 of the Criminal Code of Ukraine, which on March 3, 2022 was provided by the Law of Ukraine «On Amendments to Certain Legislative Acts (on the Establishment of Criminal Liability for Collaborative Activities)». Based on the analysis of scientific literature and bills, certain conclusions were made about the construction peculiarities of the relevant components of collaboration activities. In particular, it was found that the vagueness of certain features of the relevant components of the criminal offense is contrary to the principle of legal certainty and requires further scientific research. Some forms of collaborationism need to be clarified or excluded. Such forms of committing a criminal offense primarily duplicate forms of treason. Such a form as «... actions of Ukrainian citizens aimed at implementing the educational standards of the aggressor state in such educational institutions» can be widely interpreted in judicial practice. It will lead either to selective justice or to the non-application of this form at all. It is stated that such ill-considered criminalization creates conditions for the rejection of the state by citizens who find themselves in difficult conditions in the occupied territories. Due to some similarities between treason and collaboration, the article identifies the possibility of avoiding traitors from severe punishment, as the punishment for most forms of collaborationism is milder than the punishment for treason. It is proposed to provide in the new part of Article 9. 111-1 of the Criminal Code of Ukraine incentive rule similar to Part 3 of Art. 111 of the Criminal Code of Ukraine. This is justified by the fact that the traitor can be released from criminal liability, and a less serious offense – collaborationism does not give the perpetrator such an opportunity. The authors of the article propose: to change the title of Section 1 of the Special Part of the Criminal Code of Ukraine to «Criminal Offenses Against the Foundations of National Security» and to provide in the sanctions of Parts 1 and 2 of Art. 111-1 of the Criminal Code of Ukraine alternative main punishment; to determine a citizen of Ukraine as a subject in all components of criminal offenses provided for in parts 1–7 of Art. 111-1 of the Criminal Code of Ukraine; to delete the reference to «voluntary cooperation» in parts 2, 5, 7 of Art. 111-1 of the Criminal Code of Ukraine; such forms of collaboration activities, which are provided for in part four of Art. 111-1 of the Criminal Code of Ukraine, to clarify by describing the specific consequences for national security. It is stated that the criminalization of collaborationism requires a comprehensive and systematic approach. First, a transitional justice strategy (concept) needs to be approved, which should, in particular, balance amnesty and prosecution of perpetrators. Secondly, the political component of the implementation of these legislative changes should be envisaged, as it does not exactly contribute to the peaceful settlement of the existing Russian-Ukrainian war.