Assistance in subversive activities against Ukraine in the form of voluntary participation in illegal formations: problems of qualification

Abstract

The article is devoted to the study of the problem of qualification of actions of Ukrainian citizens participating in illegal paramilitary or armed groups established in the temporarily occupied territory. The analysis of scientific literature and case law has shown a variety of approaches to the qualification of such actions. There are two main approaches in the scientific literature regarding the qualification of such actions. The first is the need to qualify such actions under Part 7 of Article 111 of the Criminal Code of Ukraine, and the second is the expediency of qualification under Part 7 of Article 111-1 of the Criminal Code. Based on the analysis of the verdicts in which such actions were assessed, there are four variants of qualification in court practice: under Part 2 of Article 111, Part 7 of Article 111-1 (first variant), under Part 2 of Article 111, Part 7 of Article 111-1, Part 1 of Article 258-3, Part 2 of Article 260 (second variant), Part 2 of Article 111, Part 7 of Article 111-1, Part 2 of Article 260 of the Criminal Code of Ukraine (third variant), Part 2 of Article 111; Part 7 of Article 111-1; Part 2 of Article 260 of the Criminal Code of Ukraine (fourth variant). It is proposed that the actions of a citizen of Ukraine who joined such a formation should be recognized as a special type of high treason in the form of defection to the enemy under martial law and qualified under Part 2 of Article 111 of the Criminal Code of Ukraine. Further participation of a citizen of Ukraine in an illegal paramilitary or armed group created in the temporarily occupied territory is subject to additional qualification under Part 7 of Article 111-1 of the Criminal Code of Ukraine, which provides for liability for a special type of assistance in conducting subversive activities against Ukraine. Additional qualification of such actions under the relevant parts of Article 260 and/or Article 258-3 of the Criminal Code of Ukraine is not required. Key words: high treason, assistance in subversive activities, collaboration, illegal paramilitary or armed group, terrorist organization, temporarily occupied territory, crime, criminal liability, qualification, case law.