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Application practice of Article 110 of the Criminal Code of Ukraine

20.01.2021
Yevgeniy Zakharov

In common speech Article 110 of the Criminal Code (CC) of Ukraine has the title “Article for separatism”. Here is its wording:

Article 110. Trespass against territorial integrity and inviolability of Ukraine

1. Willful actions committed to change the territorial boundaries or national borders of Ukraine in violation of the order provided for in the Constitution of Ukraine, and also public appeals or distribution of materials with appeals to commit any such actions, -

shall be punished by imprisonment for a term of three to five years with or without forfeiture of property.

2. Any such actions, as provided for by paragraph 1 of this Article, if committed by a member of public authorities or repeated by any person, or committed by an organized group, or combined with inflaming national or religious enmity, -

shall be punished by imprisonment for a term of five to ten years with or without forfeiture of property.

3. Any such actions, as provided for by paragraphs 1 and 2 of this Article, if they caused the killing of people or any other grave consequences, -

shall be punished by imprisonment for a term of ten to fifteen years or life imprisonment with or without forfeiture of property.

Article 110 is under the jurisdiction of the Security Service of Ukraine (SBU). It is the most used article in the investigation of crimes against the national security: around a thousand criminal proceedings were opened under this article in 2014-2019, first-instance courts delivered more than 500 sentences. The summarized data concerning the investigation of crimes qualified under Article 110 is taken from the site of the Prosecutor General’s Office, and concerning the court decisions under this Article – from the Unified Register of Court Decisions, and compiled in the table:

Article 110 of the CC of Ukraine

2014

2015

2016

2017

2018

2019

Total

Criminal proceedings recorded

258

205

88

131

146

130

958

Suspicions of crime handed

90

68

38

80

70

67

413

The number of proceedings directed to court with the bill of indictment

45

57

31

63

54

54

304

The number of closed proceedings

33

5

4

5

2

4

53

The number of proceedings concerning which the decision to terminate or suspend them has not been taken yet

176

141

54

61

85

72

589

The number of judgments delivered

29

52

60

83

100

186

510

The analysis of sentences from the register of court decisions shows that the defendants under Article 110 can be conditionally divided into three major groups. The first group consists of the former officials (leadership of local governments, deputies and officials from local councils etc), accused of organization of referendums on 11 May 2014 or contribution to it. In most of those cases the preventive measure in the form of detention was not chosen and the sentences were delivered with probation. The second group is the biggest, it consists of the distributors of the separatist editions, in particular, “Novorossia” newspaper and leaflets, as well as of posters in social networks. Most often such cases also ended in suspended sentence. The preventive measure for the accused persons of two groups was sometimes chosen in the form of detention, which was hardly justified, since almost all of them pleaded guilty. However, there were cases that significantly differed from the general picture, we will examine some examples separately. At the same time SBU did not find the elements of a crime in the actions of two officers from the management of Berdychiv correctional colony No. 70 who distributed “Novorossiya” newspaper among the convicts, although the distribution of anti-Ukrainian newspapers on the territory of a closed-type institution by its employees is clearly unacceptable and should have received legal assessment.

The third group of the defendants consists of the persons who took up arms as members of illegal armed formations, but have not committed grave crimes. Detention in SIZO was used more often in this group of cases than in two previous groups, the courts delivered the sentences that provided for the deprivation of liberty for short terms, most often for one year. Some sentences are striking due to their leniency that suggests that individual defendants were released for the exchange for our prisoners of war and civilian hostages.

In general, the article seems to be a “rubber” one, it is used for qualification of various actions. Thus, for example, the same Kyiv District Court of Kharkiv with the interval of one month, on 18 September and 19 October 2015, delivered two decisions under pt. 1 of Article 110 of the CC of Ukraine. The first one is a sentence with probation concerning a settler, a person with the second group of disability, who in 2014-2015 continued working as the deputy Director of the state enterprise “Donvuglerestrukturizatsiya” in Makiivka and thus “provided the functioning of the enterprise in favor of the self-proclaimed DPR”. The second – 4 years of imprisonment for a person previously convicted for patrolling the territories as a member of “Vostok” battalion and other illegal armed formations of the so-called “DPR”.

Let us briefly examine the typical examples from all three groups, as well as the cases that fall out of the general picture.

A resident of Mariupol in April-May was the deputy head of the territorial election commission for the organization of the “referendum” on 11 May 2014. He was accused under pt. 2 of Article 110 of the CC of Ukraine, arrested on 21 June 2014. He signed the plea agreement with the prosecutor, it was approved by Primorsky district court of Mariupol on 14 October 2014, released in the courtroom. The sentence – five years with the probationary period of three years.

Volodymyr Protsenko, Debaltseve mayor, elected from the Communist Party of Ukraine, was accused under pt.2 of Article 110 of the fact that on 5 May 2014 he submitted the issue on provision of the premises for holding the “referendum” on 11 May for the consideration at the extraordinary session of Debaltseve town council and signed the relevant decision. He was in SIZO since January 2015. Protsenko pleaded innocent, explaining that the proposition to provide the premises was given by a deputy from the Party of Regions, he did not prepare and did not sign the text of the decision. The witnesses, including the ones from “Batkivschina” party, testified in the court that the Ukrainian flag was hanging on the building of Debaltseve town council, and Protsenko had pro-Ukrainian position and did not satisfy the Party of Regions. On 22 December 2015 a judge from Kostyantynivka city court, Andriy Mirosyedi, declared the evidence of the prosecution inappropriate, took into account the testimonies of the witnesses and acquitted Protsenko, he was released in the courtroom. 9 deputies from Verkhovna Rada, led by Mustafa Nayem, dissatisfied with the acquittal, asked the High Qualifications Commission of Judges to bring the judge to responsibility, however, they did not provide any legal argument. Protsenko did not appear for the appellation proceedings and on 26 June 2016 he was declared wanted. HQC disagreed with the people’s deputies, Andriy Myrosyedi still works as a judge.

Oleksandr Babenko, the head of Novoaydar town council, was accused under pt. 1 of Article 110 of the fact that on 9 May 2014, on the rally in Novoaydar village he encouraged people to participate in the “referendum for the independence of LPR” on 11.05.2014 and agitated to vote for the creation of “LPR”. Since 6 August 2014 he was held in SIZO. He pleaded innocent and testified that he was the presenter at a celebratory rally, but he did not encourage the referendum or “LPR”. The chief editor of “Visnyk Novoaydarschyny” newspaper, where Babenko's congratulatory festive performance was retold, stated in the court that the incriminating testimony during the pre-trial investigation “was given after coercion, since the military commandant of Novoaydar village brought him handcuffed to Polovynkyne village of Starobilsk district, where Babenko underwent unlawful actions of physical and mental coercion by the armed individuals”. A month after that SBU opened the proceedings under pt. 2 of Article 110 against the journalist himself, checking the May publications of the “Visnyk”. Other witnesses, the participants of the rally, testified in the court that the accused did not encourage referendum or the separation of the territories from Ukraine, although one witness stated that Babenko’s speech contained criticism against the current Kyiv government. On 26 June he was acquitted by the court and released from custody. However, on 18 September the court of appeal quashed the decision, noting that the defense did not disclose its witnesses to the prosecution in advance, and remitted the case for the fresh consideration. On 12 March 2015 the accusation was changed, and on the same day Babenko was placed in custody: he was additionally accused of preparation and holding of “referendum” on 11 May, he was held in SIZO until 20 October 2016 when the sentence with probationary term was delivered.

Anton Davydchenko, being a leader of Odesa movements “Youth Unity” and “People’s Alternative”, in February-March 2014 was on air on TV channel “АТB” and on the rallies in the center of Odesa he encouraged the “federalization” and holding the referendums on the withdrawal of a number of regions from Ukraine for the creation of “Novorossiya”. He was arrested on 17 March 2014, he spent more than 4 months in custody. He pleaded guilty, signed the agreement with the prosecutor, and on 22 July the sentence was delivered under pt.1 and 2 of Article 110 – 5 years of imprisonment with probationary term of 3 years. He was released in the courtroom.

Oleksiy Grek, a citizen of Moldova, Archpriest of the UOC of the Moscow Patriarchate, served in Izmail. He published the “Otkroveniye” newspaper, its issues No.18-19 (May 2014) contained “public calls for physical destruction of those who support Ukrainian government”, support for illegal armed formations etc. The copies were distributed on the market of Izmail, in the parish and in the internet. The preventive measure was not chosen. Grek’s actions were condemned by Diocesan Council of the Odessa Diocese for aggression. Grek pleaded guilty and signed the agreement with the prosecutor. On 26 May 2015 that agreement was approved by Izmail city district court, the sentence under pt. 1 of Article 110 – 4 years of imprisonment suspended for 2 years.

Yuliya Smagina, a cook, raises a young child. Between June 2014 and January 2015 she was distributing through “Vkontakte” social network the calls for the creation of “Kharkiv People’s Republic” and supported “DPR” and “LPR”, made 122 posts on those topics in total. She was accused under pt.2 of Article 110. She pleaded guilty. However, she was held in custody in SIZO between 23 January and 25 December 2015, when Chuguyiv city court delivered the sentence in the form of imprisonment for 1 year and 10 months. With the calculation of 1 day in SIZO as 2 days of imprisonment her punishment term ended. In our view, Smagina spending 11 months in SIZO was unjustified and constituted unnecessary cruelty.

A manager from Moscow, Volodymyr Bezobrazov, a Russian national, was accused under pt. 2 of Article 110 of the fact that, being with his family on vacation in Karolina-Butaz of Odesa region, by prior agreement with unidentified persons, he recruited local residents in cafes to move to Luhansk and serve in “LPR” for payment. He was held in Odesa SIZO since 19 June 2014. During the investigation he pleaded guilty, but during the trial he stated that he did not admit guilt. The sentence delivered on 14 August by Ovidiopol district court of Odesa region – 5 years of imprisonment – was appealed against in the court of appeal, which quashed the sentence on 23 October 2014 and remitted the case to the trial court for the fresh consideration. The previous conspiracy with unidentified persons disappeared from the indictment, only the cafe episode remained. Bezobrazov signed the plea agreement with the prosecution, it was approved by Ovidiopol court on 6 March 2015: 3 years and 3 months of imprisonment with 2 years of probationary term. Below is the description of subsequent events from a human rights activist, Krassimir Yankov, then an employee of the Human Rights Watch (currently leading Kharkiv department of Monitoring Mission of the Office of the United Nations High Commissioner for Human Rights): “When he left the courthouse he was at once approached by a minivan, and masked people wearing camouflage shoved him in the minivan and took him away. His relatives and lawyer believed that several days later he would appear in LPR after the exchange. However, several days later they learned that the exchange was not carried out for unknown reasons. That is how Volodymyr Bezobrazov appeared in Kharkiv. Then they tried to exchange him several times. In October 2015 the investigators from SBU gave him a phone and he called his mother. He read her a prepared note that said that there will be no further exchanges, let his mother that lives in Moscow apply to a representative of the Ombudsman in the so-called “DPR to include him in the exchange lists. His mother applied there, but the ombudsman’s office in the “DPR” replied: "Why do we have to help you? Your son did not do anything for us. We do not know him. We are interested in the release of our fighters and the people who worked for us". Therefore, we deal with the person who was detained for the pro-Russian views and verbal support for pro-Russian separatists in the East of Ukraine. They tried to present him as an ardent separatist who seemingly conducted illegal activity on the territory of Ukraine, to exchange him later for the Ukrainian prisoners held by the representatives of “DPR” and “LPR”. As turned out, that person was not involved in anything, he was only expressing his views. And they failed to make him an “exchange coin” in a very dirty game for the exchange of the prisoners of war. He found himself in a complete legal vacuum.” (my translation – Ye.Z.) So, Volodymyr Bezobrazov did not commit the actions he was convicted for, and it was impossible to exchange him. On 17 December 2016 Bezobrazov was taken from SIZO and released not far from the contact line. He was able to get to Donetsk and subsequently return to Moscow. In our view, Volodymyr Bezobrazov could be considered a political prisoner for the entire period of detention.

Olena Ivanovska, the head of Nizhnya Olkha village council in Luhansk region, transmitted by phone to “LPR” the information about the location and movement of the Ukrainian divisions. She was arrested by SBU in late August 2014 and accused under pt.2 of Article 110 of the CC of Ukraine. The preventive measure was not chosen. Ivanovska signed the plea agreement with the prosecution, and the court approved it in the sentence – 5 years of imprisonment with the probationary term of 1 year.

A resident of Krasnograd, a tower assembler, left for Alchevsk on 16 April 2015, to join the “Prizrak” brigade. He received АК-47 assault rifle that was not actually used by him, however, as stated in the sentence, “its appearance put psychological pressure on the representatives of Ukrainian government and local residents with the aim of the change of territorial borders of Ukraine for the separation of Luhansk region to the territorial formations not provided by the law”. He used to repair military and civilian vehicles of “Prizrak” battalion until 6 May 2015, when he went home. Furthermore, in that period he obtained two RGD-5 grenades with a primer, one F-1 grenade with primer and 90 5,45 mm rounds that he brought to the place of his residence. He sold some of the ammunition and kept the rest home until 22 July 2015, when they were seized during the search. He was accused of crimes under pt.1 of Article 110 and pt.1 of Article 263 of the CC of Ukraine, preventive measure was the detention. He admitted his guilt in full, repented and explained that he committed his crimes “because of the wish to see what was really happening there and because of his mistake”. The sentence – 3 years and 6 months of imprisonment suspended for 2 years.

A resident of Sumy, Roman Kolisnyk, was accused under pt.1 of Article 263 of the CC of Ukraine of illegal possession of weapons and under pt.1 of Article 110 - of public calls to the violation of territorial integrity of Ukraine. Kolisnyk numerously distributed such posts from the groups in “Vkontakte” social network as “Thanks for taking the Crimea! Take us, too… Do not leave us to be torn apart by the Nazis from the western regions”, “Two Ukraines is a matter of time” etc. (38 posts in total). A grenade was seized from him during the search. Kolisnyk pleaded guilty partially: he found the grenade, and he did not distribute the posts, only “liked” them. One of the witnesses testified in the court that he told her that he would leave to Donbas to fight for illegal armed formations. On 21 October 2015 the court delivered the punishment under pt. 1 of Article 110 in the form of imprisonment for 2 years, under pt. 1 of Article 263 – for 3 years, by partial addition of punishments the court finally sentenced Kolisnyk to 4 years in prison, taking into account around 5 months that he spent in SIZO. The sentence was upheld on appellation and cassation.

Yuriy Abakumov, a deputy from Krasnograd district council of Kharkiv region, was accused under pt. 1 of Article 263 of the Criminal Code of Ukraine of illegal possession of weapons and under pt. 2 of Article 110 – of transgression on territorial integrity of the state. He was in custody in SIZO since 12 February 2015. An “RGD-5” grenade and 7,62 round were found in his wardrobe during the search. Abakumov had a permit for a hunting rifle that was kept with the rounds in armored safe, therefore the possession of ammunition in his linen looked weird. Also, according to the accusation, Abakumov promised by phone to contribute a vehicle to Luhansk sabotage and reconnaissance group during its movement in Kharkiv region. Abakumov pleaded innocent, he said that the grenade and the round were planted, and the phone conversation concerned the evacuation of his civilian relatives from LPR, and not for contribution of vehicles for the militants. On 4 February 2016 the court acquitted Abakumov under Article 110, and under pt.1 of Art. 263 of the CC of Ukraine he received the punishment with application of Article 69 of the CC of Ukraine, below the lowest threshold established by the sanction of that Article, in the form of imprisonment for 1 year and 11 months. Given that the term of the pre-trial detention that Abakumov already served exceeded the actual sentence already imposed on him, the court released him from custody immediately. On 31 May 2016 the court of appeal upheld the acquittal under Article 110 and quashed the sentence under Article 263. Thus, Mr. Abakumov can reasonably be considered a political prisoner for the period of almost year-long detention.

Let us summarize. In our view, there are reasons to discuss the possible violations of right to freedom and personal inviolability, when a preventive measure in the form of detention in SIZO  during the pre-trial investigation was applied to the persons convicted under Article 110 of the CC of Ukraine who did not pose social danger and whose actions did not have grave consequences. To make a reasonable conclusion it is not enough to see the sentence in the register of the court decisions, the entire case should be examined. However, the right to freedom with a great probability was violated concerning at least 52 accused, released from custody in the courtroom after the delivery of the sentence of shortly before it.

In general, it can be concluded that the case law under the article 110 of the CC of Ukraine was humane (if the possible releases from custody in the sentences with probation with the aim of exchange are not to be taken into account). In 437 cases (85.5%) the sentences were suspended. In 316 cases (61.8%) the court approved the plea agreement with the prosecutor. In 64 cases (12.5%) the courts applied Article 69 of the CC of Ukraine – imposing a milder punishment than provided by the law. In 10 cases (1.96%) the accused were acquitted. 1 sentence contained a fine, 4 cases – imprisonment.

In 74 cases (14.48%) the sentence provides a real imprisonment, 47 of those sentences (9.2%) – up to 5 years (including), 27 sentences (5.28%) – more than 5 years. In more detail, 11 sentences (2.15%) – 2 years of imprisonment or less, 19 sentences (3.72%) – between 2 and 4 years of imprisonment, in 17 cases the punishment was between 4 and 5 years long (including), in 17 cases – between 5 and 8 years, in 10 cases – more than 8 years (in those cases the accused are also convicted for other Articles of the CC – 109, 111, 258-3, 263). In 8 cases there was also the forfeiture of property. It should be noted that the strictest sentences were delivered in 11 cases in special court proceedings in absentia.

In the opinion of the European Court of Human Rights, a key factor in the assessment of the act that is qualified as a crime under Article 110, is an answer to the question – whether or not the accused encourage the violence. In case of presence of the calls to violence and hostilities or terrorist acts the restraint in the freedom of expression in the form of criminal prosecution cannot a priori be considered a violation of human rights. Next, the consideration should move to the plane of assessing the proportionality of state intervention. At the same time calling the government “junta”, support for referendums and participation in them (including unrecognized ones) or even support for the outlawed self-proclaimed “DPR” and “LPR” or the so-called “Novorossiya”, unrelated to the direct calls for violence or support for hostilities of such formations can be considered a violation of the freedom of expression if such opinions are criminally prosecuted. Whether there was a violation of the freedom of expression, depends on particular circumstances and details of each case. However, given the case law it could be said that the statements about the mass political persecutions of the supporters of federalization, division of Ukraine and self-proclaimed “people’s republics” are groundless, although in some individual cases the criminal prosecution can be reasonably called a political one.

We provide the annex with short data on 510 delivered sentences (in Ukrainian).

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