‘Ukraine is not Russia’: Judge expresses opposing view over pensioner’s prison sentence for a ‘like’

Outrage over Russia’s draconian sentences against opponents of its war against Ukraine is warranted not only by shared condemnation of Russia’s war of aggression, but because of adherence to fundamental democratic principles, including freedom of speech.  This is one of the reasons why Supreme Court judge Arkady Bushchenko saw no choice but to issue an opposing view after the Supreme Court’s Cassation Court upheld a one-year prison sentence against a 70-year-old Ukrainian pensioner over a social media ‘like’ under a post about a Russian general.

The sentence in question is one of many passed by Ukrainian courts since the beginning of Russia’s full-scale invasion of Ukraine.  On 3 March 2022, Ukraine’s legislators passed a new Article 436-2 of the Criminal Code which makes it a criminal offence to justify Russia’s armed aggression against Ukraine, to claim it to be legitimate, deny it and / or glorify those taking part in it.  No clear definition was provided of what was to be deemed ‘glorification’ or ‘justification of aggression’, with this one of the concerns expressed from the outset about the new norm.

The 70-year-old pensioner in the case where Bushchenko disagreed with his colleagues was prosecuted under Article 436-2 § 2 over a ‘like’ (or its equivalent) under a post on the social network Odnoklassniki.  The post contained two photos of a general and a text, identifying the individual as “Hero of the Russian Federation Kobylash, Sergei Ivanovich”.  He was made Commander of long-range aviation in September 2016, with no end date for this given.  The long text (which is identical to that on the Russian Wikipedia page) makes it clear that Kobylash was a military ‘sniper fighter pilot’ who took part in both of Russia’s wars in Chechnya and its war against Georgia in 2008 (described as “the war in Southern Osetia”).  He was born in Odesa but would seem to have gone from Soviet citizenship to Russian.  There is no mention of anything after 2018, and no date of death, although the post in question was under a section entitled ‘in memory of the fallen’.

Bushchenko writes that he is “in no doubt that a year behind bars for ‘a like’ under such a post by an obscure Internet user is a grossly disproportionate sentence.”

We are dealing here, he says, with a punishment for expressing a view and not even a view, but the mere ‘liking’ of somebody else’s expression of their views.

Criminal prosecution for expressing ones views can easily turn into a method of intimidation and tyranny, he warns, with one of the methods used being lack of legal clarity as to what behaviour can be expected to result in charges.  There can be restrictions on freedom of expression in a free society, but these require particular attention to each aspect. Courts must also ensure that they provide an interpretation of the norms that will not end up with Ukraine being found by, for example, the European Court of Human Rights to be in violation of its commitments under the European Convention.

Bushchenko does not deny that a state of war creates many legitimate grounds for restrictions on freedom of expression, “however the war does not justify everything”. He points out also that wartime conditions make it especially imperative that the courts pay close heed to the intentions of the state which can be tempted, on a wave of public support for decisive measures, to broaden restrictions further than the situation actually requires.

In each individual case, the questions must be whether the restrictions are based on law, and foreseeable; whether they serve a legitimate purpose; and whether the restriction is proportionate to the legitimate purpose.

Bushchenko is clear that the stated purpose of the norm introduced on 3 March 2022, namely, to defend “Ukraine’s national information realm” is legitimate.  He is considerably more sceptical about the point of so many Security Service [SBU] officials and other personnel having devoted so much of their time to prosecuting a person for ‘a like’, but says that it is not the place of the courts to assess how the state deploys human and material resources.

There are, however, other questions which fall fully within the scope of the courts and here Bushchenko’s assessment is damning. 

The prosecution and sentence must be based on law and be proportionate to the offence.  Article 436-2 prohibits justification or denial of Russia’s armed aggression against Ukraine and the glorification of its participants.

The text in question that the pensioner ‘liked’ is a statement of fact, with this including even the detail that he was declared a ‘hero of the Russian Federation’.  While there are words about ‘courage’, and a story clearly aimed at presenting him in a positive light, these have nothing to do with Ukraine, and, in Bushchenko’s view, cannot be called ‘glorification’ There is no mention of active involvement in Russia’s aggression against Ukraine at any time.

Bushchenko also asserts that Ukraine’s criminal legislation and the ban on material glorifying participants in Russia’s aggression against Ukraine cannot extend to utterances within the information realm of another country.  It is unclear whether he is referring to the fact that Odnoklassniki is a Russian social network.  It remains, however, fairly widely used in Ukraine and, as reported, one of the justifications for prosecuting people for ‘likes’ specifically on Odnoklassniki is such a ‘like’ apparently means that the post is seen by all those among the ‘liker’s’ contacts.

Bushchenko, therefore, finds no evidence of the offence, as envisaged by Article 436-2, in the pensioner’s ‘like’.  Not only is the mere fact of his being part of the Russian armed forces insufficient grounds to call him a participant in Russia’s aggression against Ukraine, but, Bushchenko points out, it is not even clear that Kobylash was alive when the text was ‘liked’ (on 2 April 2022).  Although the post is from the section “in memory of the fallen”, neither the text on Odnoklassniki, nor the Wikipedia entry speak of his death, with the last date given being in 2018.   

No evidence was, in fact, provided to confirm the first-instance court’s assertion, in its justification for the sentence, that Kobylash had played a direct role in Russia’s war against Ukraine, in the killing of civilians and destruction of Ukrainian cities and villages.

There may, in fact, be such evidence since Ukraine’s Military Intelligence [HUR] posted information about Kobylash on 20 April 2022.  This accuses him of direct involvement in Russia’s full-scale invasion of Ukraine and of mass airstrikes on Ukrainian cities and infrastructure, with this leading to major damage and the deaths of civilians.  He is specifically accused of having been in command of the blanket bombing of heavily populated areas, in particular, Mariupol.  There is also mention of his active involvement in Russia’s mass bombing of Syrian territory.  This information is on the Ukrainian Wikipedia entry and the Myrotvorets site.

There is no reason to believe that information that was only reported on 20 April 2022, was known to the pensioner when she ‘liked’ a very different, heavily edited, version of Kobylash’s activities on 2 April 2022. 

Since the sentence was clearly challenged, first in a court of appeal, and then at cassation level, it seems likely that it could end up at the European Court of Human Rights. 

More details about the application of Article 436-2 here:

Ukraine’s courts impose prison sentences for reposting or even ‘liking’ social media posts that support Russian aggression