Draft of the new Penal Code of Ukraine Mar.1999
B. The adoption of the new Penal Code (PC), which is to correspond to the norms of the international right in the field of human rights, was one of the obligations taken by Ukraine in joining the Council of Europe in November 1995. The work over the draft has been lasting for six years; the draft is approved by the Supreme Rada of Ukraine in the first reading and is prepared for the second one. Toour pity, we must state that the draft is oriented to the further toughening of the former policy retained from the times of the USSR and having repressive character. The comparison of certain parts of the current draft with the operating code shows that the draft is more severe, although it is obvious that making punishments more severe does not affect the growth of crime. The draft contains a large number of articles that regard certain actions as crimes, although they could be considered civil, disciplinary of administrative offences. We shall illustrate it with one example, a sort of dream for tax inspection; this is Article 194 — ‘Dodging from presenting financial documents.
C. The draft contains evident anachronisms reminding the ideas of the great leader and teacher of all peoples. Such is Article 108 — ‘Sabotage — from the part ‘Crimes against foundations of the national security of Ukraine with the purely Stalins formulation and the sanction of incarceration from 6 to 15 years with confiscation of property. In what follows we shall confine ourselves to those parts of the PC which are contained in the project ‘Security Services in a Constitutional Democracy.
D. In our opinion, Articles 104, 105 and 109 of the part ‘Crimes against foundations of the national security of Ukraine restrain freedom of expression without sufficient grounds.
E. Article 105 ‘High treason repeats almost verbatim Article 56 of the operating PC (which, in its term, in many places repeats the Article on high treason from the PC of the Soviet times): ‘High treason, that is an action deliberately committed by a citizen of Ukraine to damage her sovereignty, territorial integrity and inviolability, defensive capability, state, economic or information security of Ukraine; defection to enemy during hostilities or during armed conflicts, espionage, assisting another country or a foreign organization or representatives thereof in subversive activities against Ukraine… ‘Assisting in subversive activities is nothing but ungrounded restrain of the freedom of speech and information: in conditions of the open society a citizen has a natural right to communicate freely with foreign organizations and individuals in any sphere. To refer this to criminal activities is reasonable only in the case when it concerns violence or appeals to violence. The same drawback — violating the freedom of speech and information — has Article 104 ‘Actions to damage territorial integrity and inviolability of Ukraine: the criminal side of it may be actions of violence committed with the purpose of changing the territory or replacing the frontier line as well as public appeals or distribution of documents appealing to commit such actions. If the word ‘violence is not applied, then such actions must be immediately withdrawn from the field of criminal right. That is why Article 104 becomes senseless, since it is impossible to fight separatism with crime opposing means. Article 109 cannot stand criticism either. It concerns espionage, which is ‘collection and transfer, to another state, foreign organizations and representatives thereof, of the information representing state or military secrets, as well as ‘collection and transfer, by order of foreign intelligence, of other data to damage interests of Ukraine. From the standpoint of international standards about the freedom of expression collection and distribution of any information, which is not defined as secret, must be regarded as rightful, regardless of the motives of the person who collected information, and, in general, is it rightful, when investigating officers and judges would determine what is in the interests of Ukraine and what is not?
F. Article 304 — ‘Transfer to foreign organizations of information that represents service secrets — is incorrect by the same reason. It reads: ‘collection or transfer of information with the purpose of passing it to foreign organizations and their representatives, if this information concerns economic, scientific, technological or other data that represent service secrets, by a person who learned this information in the process of work — is punished by restriction of freedom for the term up to three years or incarceration for the term from two to five years, with the prohibition to occupy certain jobs for the term up to three years, or without the latter. It is not clear what kind of information is mentioned in this article, since the Ukrainian legislation does not define what are service secrets. Since nowadays any head of any agency of the executive power in Ukraine may order to classify the information as a service secret, collection of any information in the system of state power and local self-rule may become criminal. The punishments for the actions stipulated in Article 304, are more severe than in the operating PC, which stipulates the punishment of incarceration for the term up to three years or correcting work for the term up to two years or the fine up to five and a half officially established minimal wages.
G. It should be noted that, compared to the operating PC, the punishment is made more severe for divulging state secrets (‘from 2 to 7 years of incarceration with the prohibition to occupy certain jobs, of without the latter instead of ‘from 2 to 5 years of incarceration), for loss of documents containing state secrets (‘from 2 to 5 years of incarceration with the prohibition to occupy certain jobs, of without the latter instead of ‘from 1 to 3 years of incarceration), for the violation of privacy of correspondence, telephone talks, telegraph and other messages sent through technical channels (‘correcting works for the term up to 1 year or incarceration for the same term instead of ‘correcting works). In the latter article a new clause has appeared: ‘committing the same actions by a state official with the same punishment: the restriction of freedom for the term up to 3 years, which is absent in the operating PC.
H. A new article has appeared: ‘Encroachment on the honor and dignity of the President of Ukraine, which establishes that ‘the encroachment on the President of Ukraine while executing his powers or concerning this execution, as well as the slander on the President of Ukraine are punished by the restriction of freedom for the term up to 5 years or incarceration for the term up to 7 years. As we see it, the article leaves many opportunities for arbitrary accusations and can result in serious violations of the freedom of speech. By the way, it is worth noting that the punishment in the Article ‘Slander which is punished in the operating PC by incarceration for the term up to 5 years, is retained in the draft which seems to be an anachronism: in the states, which consider themselves civilized, journalists are not incarcerated even for doubtless slander.