Current legal regulation and specificities of classification
Voluntary election to illegal authorities
Participation in the organization and conduct of illegal elections
Public incitement for illegal elections
Circumstances that exclude liability under Part 5 of Art. 111-1 CCU
Introduction
In 2014, russia occupied the Autonomous Republic of Crimea and certain areas of Donetsk and Luhansk regions. In 2022, they continued their armed aggression against Ukraine with a full-scale invasion, expanding the occupation and seizing certain territories of Zaporizhzhia and Kherson regions. Illegal referendums and elections are an integral part of the Russian war of occupation. For their organization and conduct, the rf involves their citizens and residents of the temporarily occupied territories (TOTs).
Through illegal "expression of will" and changes to their "constitution," russians seek to "legalize" the occupation and integrate the population of the occupied territories into their political field. This is so important for the Kremlin that the occupiers are ready to hold pseudo-elections even during martial law, which they declared in the occupied territories (for more details, see the article "How Russia prepares pseudo-elections in the occupied territories"). In particular, in 2022, russians held aggressive referendums, in 2023 — illegal elections to the occupation authorities, and in 2024 — the so-called "elections of the President of russia".
To counteract such processes, it is important to ensure the inescapable nature of punishment for criminal offenses against the foundations of national security, including for participating in the organization and conduct of illegal referendums and elections. Although formally, the crime of aggression does not provide for such an element, it was the illegal referendums of 2014 and subsequent illegal elections in the occupied Ukrainian territories that allowed the russians to unleash the next stage of the aggressive war in 2022. Therefore, the effectiveness of investigation and prosecution for this category of crimes may contribute to proving the crime of russia's aggression in the future (see the material Establishing a tribunal on russia's aggression against Ukraine: a higher level of responsibility to prevent new conflicts in Europe).
There is a wide demand in society to execute liability for participation in illegal elections and referendums in the occupied territories. Thus, according to a sociological study commissioned by the Civil Network OPORA, almost all Ukrainians are convinced that criminal liability should await those who helped the Russian administration organize the so-called "elections" and "referendums" in the occupied Ukrainian territories (92.8%) and ran for offices (92%). In addition, two-thirds of Ukrainians believe that criminal liability should also await those who voted in illegal "referendums" and "elections" organized by Russia. Also, the vast majority of respondents (61.2%) believe that the right to elect and be elected shall be limited for the following three categories of people: those who accepted a Russian passport; people who participated in the so-called "elections" and "referendums" and organized them; and those who worked in the occupation authorities and law enforcement agencies. As few as 7.4% of respondents believe that none of these people should be deprived of their voting rights.
Realizing the urgency of this problem, OPORA continues to study the practice of criminal prosecution for participating in the organization and conduct of illegal referendums and elections. We have previously published studies on similar topics: Referendums on changes to territories: in Ukraine and all over the world, Review of judicial practice on bringing to justice for the preparation and conduct of pseudo-referendums in Crimea, Donetsk and Luhansk regions for 2020–2022.
Background
Before the beginning of the full-scale invasion in 2022, the acts to organize and hold illegal referendums were mainly qualified under Art. 110 ("Infringement of the territorial integrity and inviolability of Ukraine") and under Art. 110-2 ("Financing of acts committed with the aim of forcibly changing or overthrowing the constitutional order or seizing state power, changing the boundaries of the territory or state border of Ukraine") of the Criminal Code of Ukraine (hereinafter referred to as the CCU)
At the same time, collaborationist activities as such were not criminalized at all. The then regulation and practice did not make it possible to effectively prosecute those involved in the organization of illegal elections in TOTs, except in cases where such acts could be qualified under Art. 109 ("Acts aimed at violent change or overthrow of the constitutional order or at seizure of state power") or Art. 111 (“High Treason”) of the CCU.
It was only in March 2022 that the CCU was supplemented by Art. 111-1 "Collaborative activities." In Part 5, the legislators provided for certain criminal offenses related to illegal referendums and elections.
Figures
According to the Unified State Register of Court Decisions (USRCD), since the introduction of liability for collaborative activities until June 27, 2024, under Art. 111-1 of the Criminal Code of Ukraine, 1,709 verdicts were pronounced:
- 2022 — 266 verdicts, of which only 2 verdicts were verified under Part 5;
- 2023 — 840 verdicts, of which 153 under part 5;
- for the first half of 2024 (as of June 27) — 607 verdicts, of which 138 under part 5.
In fact, it is impossible to establish the precise number of rulings for acts related to illegal referendum and election processes in the absence of a separate category of classification of criminal offenses in the USRCD. However, we have verified 57 verdicts on participation in the organization and conduct of illegal referendums and 4 verdicts for participation in the organization and conduct of illegal elections.
We also sent relevant requests to the Office of the Prosecutor General and the State Judicial Administration. They replied that official reporting does not focus specifically on parts of the articles of the Criminal Code.
At the same time, the Office of the Prosecutor General reported information on the number of registered criminal offenses (proceedings) under Art. 111-1 of the CCU, namely:
- 2022 — 4,053 criminal offenses (proceedings), of which 620 were forwarded to court with an indictment;
- 2023 — 3,251 proceedings, of which 984 were forwarded to court with an indictment;
- 2024 (January-May) — 1,439 proceedings, of which 199 were forwarded to court with an indictment.
Current legal regulation and the specificities of classification
Currently, Part 5 of Art. 111-1 of the Criminal Code of Ukraine is formulated in such a way that criminal liability arises for "Voluntary assumption by a citizen of Ukraine of a position related to the performance of organizational and command or administrative and economic functions at illegal authorities established in the temporarily occupied territory, including in the occupation administration of the aggressor state, or voluntary election to such bodies, as well as participation in the organization and conduct of illegal elections and/or referendums in the temporarily occupied territory or public incitement to hold such illegal elections and/or referendums in the temporarily occupied territory."
As you can see, this part of the article provides for several independent offenses. A propos, this paper only covers those that are directly related to illegal electoral or referendum processes.
Being voluntarily elected to illegal authorities established in the temporarily occupied territory, including in the occupation administration of the aggressor state
For this type of the body of the crime, from the subject's side, it is mandatory to have such a feature as voluntariness — when such election takes place of their own free will, without physical or mental coercion. The Supreme Court highlighted the fact that in criminal law, an act shall be considered voluntary if it is possible to choose several options for behavior, taking into account the totality of circumstances that may exclude criminal wrongfulness under Art. 39, 40 of the Criminal Code of Ukraine (resolution of 31.01.2024 in case No. 638/5446/22).
Also, under this criminal offense, such election shall be to an office at the illegal authority, that is, an authority that is not provided for by the legislation of Ukraine but is established in the temporarily occupied territory.
At the same time, it is necessary to pay attention to some problematic aspects of the classification of this corpus delicti. First, the article uses the wording "election," which can be interpreted either as a result or as a process. Different interpretations of this provision affect the possibility of bringing to justice persons running for such bodies. Secondly, "election" can take place not only in illegal elections, but also through the voting of an illegal body when a person is appointed to a certain position.
Participation in the organization and conduct of illegal elections and/or referendums in TOTs
The wording "participation in the organization and conduct of the pseudo-referendum" contains the conjunction "and". Therefore, for the proper qualification of this corpus delicti, it is necessary to have a combination of participation in the organization and conduct of such a pseudo-referendum or pseudo-elections. In other words, if a person only votes in a pseudo-referendum or pseudo-elections, such acts shall not constitute a criminal offense under this part, but will not exclude liability under other criminal law provisions. Some expert materials also emphasize that participation in illegal elections as a candidate, observer, campaigner, which does not provide for an organization, does not define this corpus delicti but can be qualified only on the basis of "public incitement to elections or referendum", if they took place.
However, in judicial practice, there were problems with understanding the concepts of "organization and conduct of illegal elections and/or referendums". For example, in the Verdict dated 05.10.2023 No. 516/187/23 of the Teplodar City Court, it is stated that "participation in the organization of the referendum provides for a certain list of acts that a person consistently performs during such a process, while campaigning and calling on villagers to participate in the referendum as voters is not the organization of a referendum." At the same time, in the Verdict of June 14, 2024, No. 334/6198/23 of the Leninskyi District Court of Zaporizhzhia , campaigning among the local population, along with informing the residents of the community about the preparation and holding of the referendum, distributing leaflets and newspapers with propagandistic content about the voting, was included in the organizational measures. It should be highlighted that in none of the verdicts were such acts qualified as public calls for elections or referendum.
It is worth recognizing that one of the reasons for this practice is the lack of a legislative definition of these categories, which allows judges to interpret them at their own discretion.
In addition, we found cases when the court ignored the classification of the committed act in terms of its belonging to the organization and conduct of illegal electoral and referendum processes. For example, in verdicts No. 522/10735/23 of the Prymorskyi District Court of Odesa City, No. 766/11354/23 of the Kherson City Court of Kherson Region, the act was qualified as the participation of a citizen of Ukraine in only the conduct of an illegal referendum in the temporarily occupied territory, committed by prior conspiracy of a group of persons. These examples clearly demonstrate the need to provide such an assessment on a case-by-case basis, justifying the existence of both components: the organization and conduct of illegal elections or referendums.
It should be emphasized that engagement in the work of the so-called "election commissions" was mainly qualified as participation in the organization and conduct of illegal elections — for example, in verdicts dated 05.06.2024 No. 334/8825/23 of the Leninskyi District Court of Zaporizhzhia, dated 10.04.2024 No. 333/2085/23 of the Komunarskyi District Court of Zaporizhzhia, dated 12.04.2024 No. 334/5901/23 of the Leninskyi District Court of Zaporizhzhia. However, in some cases, members of "election commissions" were prosecuted for holding office in an illegal authority established in TOTs (for example, in case No.331/8354/23). Such a difference in practice proves once again the necessity of restructuring Part 5 of Art. 111-1 of the CCU.
Public incitement for illegal elections and/or referendums in TOTs
Note to Art. 111-1 of the CCU does not establish any definitions for Part 5 that could specify the understanding of legislative constructs. However, in the legal literature , public appeals are understood as incitement and coercion to certain activities aimed at an indefinite circle of persons, for example, on the Internet or through mass media. This interpretation corresponds to paragraph 1 of the Note to Art. 111-1 of the Criminal Code, although it does not apply to Part 5 of Art. 111-1.
Also, public incitement is concerned only with the conduct of illegal elections and referendums, rather than with their organization. To some extent, this raises the question of how to distinguish and qualify incitement of the organization of such illegal processes and incitement of their conduct.
Analyzing this category of offenses, we draw attention to its connection to the temporarily occupied territory. Thus, in case of voluntary election to an illegal authority, the elements of a criminal offense will be found only when the authority has been created in TOTs. Participation in the organization and conduct of illegal elections and/or referendums shall also take place exclusively in the TOTs. On the other hand, public calls should refer to the conduct of illegal elections and/or referendums in the TOTs, but the place of their pronouncement is not clearly defined, which leads to the conclusion that they can be committed outside the TOTs.
Some lawyers refer only to citizens of Ukraine as subjects of these criminal offenses. However, the legislative formulation in the CCU is not perfect because the reference to a citizen of Ukraine in this part is used only in the context of voluntary employment and election to such authorities. At the same time, the construction "as well as" divides part 5 in such a way that it does not allow to clearly define the subject of criminal liability for participation in illegal referendums and elections in TOTs or public incitement to hold them.
This uncertainty is exacerbated by other factors. Firstly, the definition of collaborative activities is lacking in the legislation. Even if we proceed from the generally accepted understanding of collaborationism as the activity of the local population, primarily citizens (although this is not necessary because collaborators among local population may also be foreigners permanently residing in this territory, or stateless persons) in the interests of the enemy to the detriment of their state, this requires distinguishing in a separate provision of such offenses committed by foreigners and stateless persons representing the aggressor country. Secondly, from the point of view of legislative technique, different elements of criminal offenses, which are "voluntary assumption of office" and "participation in the organization and conduct of illegal referendums or elections", shall be placed in different parts.
Criminal liability under Art. 111-1 of the Criminal Code of Ukraine covers persons who shall be at least 16 years of age before committing a criminal offense (Art. 22 of the CCU).
Punishment
Part 5 of Article 111-1 of the CCU provides for:
- imprisonment for a term of 5 to 10 years,
- deprivation of the right to hold certain positions or engage in certain activities for a period of 10 to 15 years,
- with or without forfeiture of property.
Thus, the criminal offenses under Part 5 of Art. 111-1 of the Criminal Code of Ukraine, belong to grave crimes.
Under Art. 55 of the Criminal Code of Ukraine, a special sanction in the form of deprivation of the right to hold certain positions or engage in certain activities may be applied as a primary or additional punishment for committing criminal offenses against the foundations of national security of Ukraine, under Art. 111-1 ("Collaboration"), 111-2 ("Aiding the aggressor state") of the Criminal Code of Ukraine, for a period of 10 to 15 years.
At the same time, in judicial practice, the wording of this sanction differs from sentence to sentence. For example, in case No.522/1951/23, the Primorskyi District Court of Odesa city deprived the convict of the right to engage in activities related to the election process, although the case itself concerns an illegal referendum. Similarly, in case No. 333/3028/23, the Komunarskyi District Court of Zaporizhzhia, used in the wording of the punishment the phrase "deprivation of the right to hold positions related to the performance of organizational, administrative and economic functions in authorities, institutions and enterprises, and deprivation of the right to engage in activities related to the organization and conduct of elections and referendums."
The Supreme Court highlighted (decision dated 06.03.2024 in case No. 183/1441/23) that if the sanction of the article of the Special Part of the Criminal Code of Ukraine determines the nature of the job or type of activity, then the wording of the sentence must exactly correspond to the content of this sanction. If the punishment in the sanction is indicated in general form, the court must specify the legal prohibition and specify in the sentence the nature and range of positions or activities the prosecuted person is banned from holding or engaging in. At the same time, the appropriate punishment shall be formulated in such a way that the convicted person is deprived of the possibility to hold the positions specified in the sentence or engage in activities in any field, as well as deprived of the opportunity to hold such positions or engage in such activities, which are similar in content and scope of powers to those related to the commited criminal offense.
It should be noted that Art. 109 (acts aimed at forcibly changing or overthrowing the constitutional order or seizing state power), Art. 110 (encroachment on the territorial integrity and inviolability of Ukraine), p. 2 of Art. 111 (high treason) and some others (Articles 112–114-2 of the CCU), which are no less socially dangerous, do not provide for such a sanction as deprivation of the right to hold certain positions or engage in certain activities. Although, according to the CCU, such an additional punishment may be imposed in cases where it is not provided for in the sanction of the article or part of the article in the Special Part, which may subsequently lead to disparate judicial practices and a higher number of cases of non-application of punishment to the perpetrators that would be commensurate with their acts.
As for the sanction in the form of confiscation of property, it can also be applied as an additional punishment.
Circumstances that exclude liability under Part 5 of Art. 111-1 CCU
It shall not be a criminal offense to commit an act under the direct influence of:
- physical coercion, as a result of which a person could not control their acts (for example, as a result of torture, excruciation or other cruel inhuman treatment) (Part 1 of Art. 40
- physical coercion, as a result of which the person retains the ability to control their acts, as well as mental coercion (for example, threats or other forms of intimidation) (Part 2 of Article 40 of the Criminal Code of Ukraine), if all the following conditions have been met:
- such acts were necessary to eliminate the danger that directly threatened you or the legally protected rights of yourself or other persons, or the public interest or the interests of the state,
- the danger in this situation could not be eliminated by other means;
- no greater harm was caused than avoided harm (or, although the harm was more significant but due to the strong emotional excitement caused by the danger, you were not able to assess the correlation of the harm caused to this danger) (Art. 39 of the CCU).
High-profile cases
To date, Ukrainian courts have pronounced sentences to all senior leaders of the occupation "administrations". The most recent convict was the head of the so-called "lnr", Leonid Pasichnyk: on January 1, 2024, the Pavlohrad City District Court of the Dnipropetrovsk Region found him guilty of committing willful acts to change the boundaries of the territory and state border of Ukraine, as well as of participating in the organization and conduct of illegal referendums and elections in the temporarily occupied territory, public incitement to them (Part 2 of Art. – Part 5 of Article 111-1 of the CCU). Pasichnyk was sentenced to 12 years in prison with confiscation of property and a ban to hold positions in the authorities for 13 years.
One of the first verdicts was the verdict against Yevhen Balytskyi, a collaborator, who was sentenced to 15 years in prison by the Komunarskyi District Court of Zaporizhzhia on June 29, 2023, with confiscation of property and a ban on holding official positions. According to the case particulars, Balytskyi, wishing to appear before the highest military and political leadership of russia, organized and held an illegal referendum on the entry of the Zaporizhzhia region into the Russian Federation in the temporarily occupied parts of the Zaporizhzhia region. In particular, as the head of the occupation administration, he signed a decree "On the appointment of a referendum of the Zaporizhzhia region on the withdrawal of the Zaporizhzhia region from Ukraine and on the entry of the Zaporizhzhia region into the Russian Federation as a subject of the Russian Federation". Also, Balytskyi, staying in the temporarily occupied territory of Melitopol, signed a proposal "On the admission of the Zaporizhzhia region to the Russian Federation as a new entity" and sent it to Putin.
Later, senior officials of the occupation administration in the Kherson region were convicted. On October 18, 2023, the Malynovskyi District Court of Odesa "posthumously" announced the conviction of collaborator Kirill Stremousov under Part 1 of Art. 111-1, Part 2 of Art. 111, part 5 of art. 111-5 of the Criminal Code and sentenced him to life imprisonment. These articles provide for treason (acts deliberately committed to the detriment of sovereignty, territorial integrity and inviolability, and national and information security of Ukraine) and collaborationism (holding a position related to the performance of administrative and economic functions in illegal authorities established in the temporarily occupied territory).
On November 8, 2023, the same court sentenced Volodymyr Saldo, who was the head of the occupation "military-civil administration of the Kherson region" and now performs the duties of the "governor of the Kherson region" (under Russian occupation). He was found guilty of committing criminal offenses under Part 2 of Art. 111, part 5 of art. 1, Part 1 of Art. 436-2 of the Criminal Code of Ukraine (high treason under martial law, collaboration, justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).
On December 27, 2023, the head of the "dpr" Denys Pushilin was sentenced to 15 years in prison by the Dzerzhynsk City Court of Donetsk Region with the ban to hold positions in public authorities, public administration, and local self-government related to the provision of public services, the performance of organizational, administrative and economic functions for 15 years, with confiscation of property. In the aggregate of criminal acts committed by Denis Pushilin, there was the fact, among others, that in September 2022, as the head of the "republic" illegally created on the territory of the Donetsk region, he convened and held an extraordinary meeting of the "council of the DPR", during which the illegitimate deputy corps adopted the so-called law "on the referendum of the DPR on joining the Russian Federation". In the end, on the basis of a void act signed by the "head" in the temporarily occupied territories, in the presence of the armed military of the Russian Federation, an illegal expression of the "people's will" was administered.
Legislative initiatives
Of the draft laws that provided for amendments to Part 5 of Art. 111-1 of the Criminal Code of Ukraine and related to illegal elections and referendums, we can highlight the Draft Law on Amendments to the Criminal Code and Criminal Procedure Code of Ukraine on Refining Liability for Certain Crimes against the Fundamentals of National Security of Ukraine No. 10136 dated 09.10.2023 and the alternative draft No. 10136-1 dated 24.10.2023.
As mentioned above, the current version of this article uses the formulation "participation in the organization and conduct of illegal elections and/or referendums in the temporarily occupied territory", which requires simultaneous participation in the organization and conduct of this offense. Instead, in the main and alternative draft laws, it is proposed to use the dividing conjunction "OR", which expands the variability of offenses, such as the participation in the organization and conduct, participation in the organization, participation in the conduct of such "elections" and/or "referendums".
Given the lack of a clear definition of “participation in elections” in the legislation, there are risks it is interpreted in such a way that voting participants in illegal elections/referendums become subject to criminal liability. Civil Network OPORA repeatedly drew attention to the fact that during the organization of the so-called voting by "visiting commissions" or special "mobile groups", which, accompanied by armed people, visited the houses of citizens in the temporarily occupied territories, local residents could hardly avoid participating in such "voting", unlike previous illegal "election" and "referendum" campaigns, when they could not go to the polling stations and thus express their protest against the occupation (see the piece "Putin's Elections": how the Kremlin organizes a high turnout of "voters" in the temporarily occupied Ukrainian territories). In this regard, we consider it inappropriate to introduce such changes.
In addition, it is worth emphasizing that the use of the term "voluntary assumption by a citizen of Ukraine of an official position” found in this part is related to the burden of proof. Subsequently, it may raise the question of the application of the provisions on extreme necessity (Art. 39 of the CCU), physical or mental coercion (Art. 40 of the CCU) because the provision on the "voluntary" holding of a position by a citizen of Ukraine in Part 5 of Art. 111-1 of the CCU presumes the need for the pre-trial investigation bodies to prove the fact of such voluntariness. Instead, draft law No. 10136-1 deleted the provision on "voluntariness" but the note specifies that cooperation with the occupying forces shall not be considered a collaborative activity when it had been forced, i.e., committed against the will of an individual who took measures possible under specific conditions in order to prevent or mitigate damage to the national security of Ukraine, or which was aimed solely at ensuring the livelihood of the population or the interests of citizens that do not contradict the laws of Ukraine and international law. Such wording changes the approach to the burden of proof for such cooperation, and may mean the need to prove the fact of physical or mental coercion by the accused person in order to apply the provisions of Art. 39 and Art. 40 of the Criminal Code of Ukraine regarding the offense committed.
Summary
A major part of the cases in this category are considered in absentia, which necessitates the strengthening of the evidence base with the testimony of witnesses. At the same time, the law enforcement system faces serious challenges related to the collection of evidence in the occupied territories that can be accessed only after their de-occupation. In any case, the investigating authorities should look for ways to prove the guilt of collaborators. One of them is to collect electronic digital evidence, which the Supreme Court calls the primary evidence in criminal proceedings for crimes against the foundations of national security of Ukraine (Resolution of June 12, 2024 in case No.569/1908/23).
Taking into account the remarks described in this piece, OPORA will continue to develop recommendations for consistent law enforcement and judicial practices of bringing to justice for criminal offenses related to illegal elections and referendums in the temporarily occupied territories.