Ukrainian law assumes criminal liability for collaborative activity, i.e. cooperation with the aggressor state and its occupation administration. At the same time, prospects of holding pseudo-referendums in the temporarily occupied territories of southern Ukraine constantly appear in the information space. In response to this, OPORA has prepared some advice on how citizens should behave in the event of illegal voting.

It is not the first time that Ukraine has encountered illegal referendums on its territory (hereinafter referred to as pseudo-referendums). Previously, OPORA wrote about the criminal proceedings opened under Article 110 of the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code, the Code) regarding encroachment on the territorial integrity and inviolability of Ukraine for the organization and holding of pseudo-referendums in Crimea, Donetsk region, and Luhansk region. However, on March 15, 2022, Article 111-1 of the Criminal Code (“Collaborative Activities”) entered into force. Its part 5 now provides for responsibility for participation in the organization and holding of a pseudo-referendum.

The specified provision provides for criminal liability for "participation in the organization and holding of illegal elections and/or referendums in the temporarily occupied territory or public calls for the holding of such illegal elections and/or referendums in the temporarily occupied territory." Such act is punishable by deprivation of liberty for a term of 5 to 10 years with deprivation of the right to hold certain positions or engage in certain activities for a term of 10 to 15 years and with or without confiscation of property.

It is worth noting that the wording "participation in the organization and holding of a pseudo-referendum" contains the conjunction "and". Accordingly, in order to qualify criminal offense under Part 5 of Article 111-1 of the Criminal Code, a combination of participation in both the organization and holding of such a pseudo-referendum is required. That is, if a person, for example, only votes in a pseudo-referendum, such actions will not constitute a criminal offense under this part, but will not exclude responsibility under other criminal law regulations.

Also, part 6 of the same article of the Code stipulates responsibility for "organizing and conducting events of a political nature, carrying out information activities in cooperation with the aggressor state and/or its occupation administration, aimed at supporting the aggressor state, its occupation administration or armed formations and/or for its avoidance of responsibility for armed aggression against Ukraine, in the absence of signs of treason, active participation in such measures." According to the footnote to this article, events of a political nature are conventions, meetings, rallies, marches, demonstrations, conferences, round tables, etc. Such an act is punishable by deprivation of liberty for a term of 10 to 12 years with deprivation of the right to hold certain positions or engage in certain activities for a term of 10 to 15 years and with or without confiscation of property.

It should be emphasized that this article provides for criminal liability for persons over the age of 16.

Norms of Article 110 of the Criminal Code regarding encroachment on the territorial integrity and inviolability of Ukraine do not lose their validity. Thus, for deliberate actions committed with the aim of changing the boundaries of the territory or the state border of Ukraine in violation of the order established by the Constitution of Ukraine, as well as public appeals or distribution of materials with appeals to commit such actions, liability arises in the form of deprivation of liberty for a period of 3 to 5 years with or without property confiscation.

Taking into account the previous judicial practice of prosecution for the organization and holding of pseudo-referendums in 2014 and taking into account the new changes to the Criminal Code, OPORA has prepared advice on how citizens should behave in the event of pseudo-referendums being held in the occupied territories.

Tip 1. Avoid participating in any public events in support of the pseudo-referendum in the temporarily occupied territories, and do not take part in the organization and preparation of such events.

In other words, do not organize and do not attend any rallies, public meetings, and public discussions where people are called to support the pseudo-referendum.

Tip 2. Do not spread calls for a pseudo-referendum at public events (congresses, gatherings, rallies, marches, demonstrations, conferences, round tables, etc.), among friends and acquaintances, at the workplace, in print media, on the radio and television.

This ban also applies to social networks. Do not publish posts calling for pseudo-referendums and do not share similar posts of other users. You should refrain from such activity on social networks both when you are in the occupied territory and after moving to settlements free from the invaders.

Tip 3. Do not distribute leaflets, newspapers, and symbols that are intended to call people to participate in a pseudo-referendum, do not make such products.

Tip 4. Do not search for members of the precinct, territorial (or other) election commissions, or similar structures to organize and conduct a pseudo-referendum, do not provide such members with any instructions, instructions, or consultations.

Tip 5. Do not contribute to the logistics of the precinct, do not provide it with furniture, paper, boxes, etc.

Tip 6. Do not agree to perform and do not perform the duties of the chairman, deputy, secretary, member of a precinct or territorial (other) election commission or a similar structure for organizing and holding a pseudo-referendum. Even if you are not a member of the commission, do not take any part in the work of the commission or assist in its work, such as assisting in the counting of ballots, transportation, establishment, and announcement of "voting" results.

Tip 7. Do not participate in "voting" at a pseudo-referendum and do not agree to be a "supervisor" of the commission's work or a coordinator of its work on any issues, do not perform other duties related to the organization and holding of an illegal referendum.

If you have the opportunity not to go to such a vote and not to take other actions related to the organization and holding of a pseudo-referendum, of course, you should refrain from this! That way, you will not create the kind of propaganda picture you need, but you will set an example for someone.

Tip 8. Explain the consequences of participating in the organization and holding of a pseudo-referendum to your children.

Criminal responsibility for such actions is provided for persons from the age of 16. Thus, if a person has not reached the age of 18 and even if they are not a voter in the sense of the current Ukrainian election and referendum legislation, but has reached the age of 16, they can be held criminally liable for assistance in organizing a pseudo-referendum combined with participation in its conduct (for example, receiving and/or filling a piece of paper with ta mark "bulletin" on it).

Tip 9. If you or your loved ones are forced to take part in the organization and holding of a pseudo-referendum through threats to life or health, remember:

It is not a criminal offense to act when the following directly applied to you:

- physical coercion, as a result of which you could not control your actions (for example, as a result of torture, torture or other cruel inhuman treatment)—Part 1 of Article 40 of the Criminal Code of Ukraine;

- physical coercion, as a result of which you could control your actions or mental coercion was applied to you (for example, threats or other forms of intimidation)—part 2 of Article 40 of the Criminal Code of Ukraine, in the presence of a combination of the following conditions:

  • such actions were necessary to eliminate a danger that directly threatened you or your or other persons' rights protected by law, or public or state interests,
  • that danger in the circumstances could not be removed by other means;
  • and no greater harm was caused than the averted harm (or, although the harm was greater, but, as a result of the intense mental excitement caused by the danger, you could not assess the appropriateness of the harm caused to this danger).

There is no scale of types of damage, but there is one exception—damage to human life is always more significant than damage not related to encroachment on human life. At the same time, the life of one person cannot be valued higher than the life of another.

Thus, if you have taken actions to organize and hold a pseudo-referendum or public calls for its holding under coercion, at the first opportunity you need to notify the law enforcement authorities about it, as well as provide evidence of such coercion if available.