The occupation of Crimea, Donetsk and Luhansk, and then large-scale Russian aggression, aggravated the relevance of international criminal law, including the implementation of the Convention on the Prevention and Punishment of the Crime of Genocide [1] and the Rome Statute of the International Criminal Court.

Therefore, the ARC expert Professor Borys Babin and lawyer Olexander Poznyak conducted a separate analysis, tested in the authoritative publication “Law of Ukraine”, of the attitude of Ukrainian law-makers and the court to the category of genocide and forms of counteraction to this international crime in accordance with the global dimension, the historical experience of Ukraine and based on the realities current Russian aggression.

Since the formulation of genocide in the aforementioned Convention and in the Rome Statute is almost identical, and since Ukraine has not yet carried out the ratification procedure regarding the Statute, the question regarding the national consolidation of the Convention requirements is rather formal in nature: first of all, they relate to the official text of the translation and, accordingly, the publication of the 1948 Convention in Ukrainian.

For a long time, domestic lawyers referred to the Russian-language text of the 1948 Convention, published on the website of the Verkhovna Rada of Ukraine (Verkhovna Rada) and then deleted [2]. The absence in open sources of an officially published translation of the 1948 Convention into Ukrainian requires permission. But such absence does not affect either the legal force of this Convention for Ukraine or the force of national legislation to combat genocide.

However, these issues are only a background for more complex challenges: the reflection and application of the provisions of the 1948 Convention in national legislation and judicial practice. Therefore, it is necessary to assess the state of reflection of the category of genocide and counteraction to it in domestic legislation and in judicial practice, especially in relation to acts and court decisions identified in open sources two years of the Russian invasion; this should be considered the purpose of this article.
In such an array of normative acts, it is necessary to highlight the general and special attitude to the category of genocide. Judicial practice must be assessed primarily in relation to published decisions in criminal proceedings and compare the corresponding dynamics with the situation observed before 2022.

Until 2014 in Ukraine, the practical dimension of application of the norms of the 1948 Convention, and indeed the 1968 UN Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity [3], was limited. The Criminal Code of Ukraine of 1960 did not contain the corresponding elements of the crime of genocide at all. The Criminal Code of Ukraine of 2001 (hereinafter CCU) [4] introduced Article 441, the first part of which established liability for genocide and gave it a definition that is generally consistent with the 1948 Convention. The second part of the article provided for liability for a separate crime, namely, for public calls for genocide, as well as for the production of materials with calls for genocide with the aim of distributing them or distributing such materials.

According to Part 4 of Article 12 and Part 5 of Article 49 of the CCU, the crime provided for in Part 2 of Article 442 of the CCU is not serious and is subject to a statute of limitations. But, according to Part 4 of Article 27 of the CCU, liability for instigators of genocide, as persons who “by condition, bribery, threat, coercion or otherwise persuaded another accomplice to commit a criminal offense,” should not accrue under Part 2 of Article 442 of the CCU, namely, part 4 of article 27 and part 1 of article 442 of the CCU.

According to the requirements of Article 2 of the 1968 Convention, in the event of the commission of genocide, its provisions apply not only to persons who act as perpetrators or accomplices of such crimes, but also to persons directly inciting (English “incite” and French “d’incitation”) of other persons before committing these crimes, or participating in a conspiracy to commit them, regardless of the degree of their completion, as well as to representatives of government authorities who allow their commission.

In the 1948 Convention, Article 3 provides for punishment for persons who have committed genocide accordingly; conspiracy to commit genocide; direct and public incitement (English “direct and public incitement” and French “l’incitation directe et publique”) to commit genocide (clause “c” of the article); attempted genocide; complicity in genocide. Thus, the limit in relation to incitement to commit genocide as an international crime and, accordingly, on public calls for genocide, as well as the production of materials with calls for genocide under Part 2 of Article 442 of CCU is an acute and pressing issue that also requires analysis of judicial practice, especially considering the constant corresponding criminal acts of Crimean collaborators.

Until 2014, the only verified Ukrainian trial in this area was criminal case No. 1-33/2010 about the Holodomor – Genocide of 1932-1933 in Ukraine. Its specificity was that the criminal procedural law of that time provided for the possibility of trial of a case against deceased defendants. The current Criminal Procedure Code of Ukraine (hereinafter CPCU) 2012 does not provide for such a procedure, with the exception of rehabilitation.

In case No. 1-33/2010, the court established a criminal mechanism by which living conditions were created designed to physically destroy part of the Ukrainian national group, namely the Ukrainian peasantry. The court made a reasonable conclusion that genocide was organized and committed in Ukraine, as a result of which 3.941 million people were destroyed, and qualified the actions of the perpetrators: Stalin (Dzhugashvili), Molotov (Skryabin), Kaganovich, Kosior, Postyshev, Chubar and Khataevich specifically 1 of Article 442 of the CCU. Case No. 1-33/2010, as stated by experts, confirmed, in accordance with the provisions of Article 6 of the 1948 Convention and Article 62 of the Constitution of Ukraine, that the verification of the factual circumstances of the commission of genocide set out in the proceedings and the decision to close the case due to It is the court that must carry out the death of persons [5].

Another conclusion of this case described by the researchers concerns the retroactive effect of Article 442 of the CCU, according to the provisions of international law. This principle is contained in Article 1 of the 1968 Convention, which makes genocide a punishable crime even if the acts do not violate the domestic law of the country where they were committed. Article 7 of the European Convention on Human Rights (ECHR) provides that the prohibition of retroactivity of a criminal law shall not be an obstacle to the trial or punishment of a person for acts which, at the time of his commission, constituted a crime in accordance with the general principles of law recognized by civilized nations [6].

After 2014, for a long time, the main criminal proceedings available for specific analysis were the case of the genocide of the Crimean Tatar people. As follows from the published procedural court decisions, this is criminal proceedings (CP) 22015000000000401 of 2015, concerning the forced relocation during May-July 1944 of more than 225 thousand Crimean Tatars and persons of other national groups from the territory of Crimea by representatives of government bodies of the USSR on the grounds of a crime provided for in Part 1 of Article 442 of the CCU [7].

On May 18, 2016, a notice of suspicion was drawn up in this case to Stalin (Dzhugashvili) and Beria, of which the requirements of Articles 276-278 of the CPCU were officially notified on May 18, 2017 [8] Subsequently, this CP was stopped on the basis of paragraph 3 of part 1 Article 280 of the CPCU [9], that is, due to “the existing need to perform procedural actions within the framework of international cooperation”.

Until 2022, the category of genocide was also used in the legal acts of Ukraine, primarily regarding the Holodomor and the deportation of the Crimean Tatars. Other court cases from the period up to 2022 mentioned genocide primarily in terms of the failure of the investigation and the court to classify certain actions under Article 442 of the CCU, as the applicants demanded; such refusals were obviously justified and required the court to assess the plot of the crime of genocide.

This happened in CP 22018040000000075, which began in 2018 in pursuance of the ruling of the investigating judge of the Babushkinsky District Court of Dnepropetrovsk on “the commission by unidentified persons of local government bodies in the territory of the Hvardeyske and Cherkasske town settlements for the residents of these settlements of living conditions calculated for their complete or partial physical destruction”; subsequently, this case was investigated within the framework of more relevant norms, namely Articles 364 and 191 of the CCU [10].

In general, until 2022, citizens wrote statements about “genocide” under the obvious influence of individual destructive political slogans, incorrectly characterizing probably illegal acts in the field of failure to provide public services or environmental pollution, or even about “deliberate commission of actions with the aim of completely depriving the life of the applicant, members his family, the creation of living conditions designed for complete physical destruction, that is, the commission of genocide” [11]. Sometimes such statements from public structures were clearly political and declarative in nature [12], and some such appeals can still be observed today [13].

Separately, one should point out CP 42014000000000980, started in September 2014 by the Prosecutor General’s Office of Ukraine according to the provisions of articles 127, 146, 147, 258-3, 343, 344, 372, 375, 438 of the CCU. This case, as follows from the text of the decisions of the investigating judges, was a procedural response to the message of Russian propaganda about the alleged “commitment of crimes” in the zone of the anti-terrorist operation by military personnel of the Armed Forces of Ukraine; the case was also a response to the conduct of the corresponding “criminal cases” by the Russia’s Investigative Committee.

Subsequently, by a resolution of the senior investigator for particularly important cases of the Prosecutor General’s Office of Ukraine in December 2018, the CP was closed on the basis of paragraph 2 of part 1 of Article 284 of the CPCU, that is, due to the absence of a criminal offense in the act. Further, representatives of 26 persons appealed this decision to the investigating judge and demanded to close the CP on the basis of paragraph 1 of part 1 of Article 284 of the CPCU, that is, due to the absence of a crime, and the investigating judge refused to cancel the decision [14].

Subsequently, this unit was closed again in July 2019 by the deputy head of the investigative department of the Office of the Prosecutor General of Ukraine for the investigation of crimes committed in the temporarily occupied territories, as well as due to the absence of a criminal offense in the act; and also individuals unsuccessfully asked the investigator and judge to close the CP on another basis [15]. However, the decision of the investigating judges in this CP does not analyze the category of genocide itself in detail.

Large-scale Russian aggression has led to dramatic changes in the relevant law-making process: since June 2022, up to forty acts of legislation have been adopted that mention the category of genocide; first of all, these are appeals and statements approved by resolutions of the Verkhovna Rada. These acts apply the category of genocide to the Russian invasion, primarily using the term genocide of the Ukrainian People; for example, this is the Verkhovna Rada’s Resolution of 2023 No. 2903-IX [16].

Verkhovna Rada’s Appeal of 2022 No. 2559-IX states that a full-scale invasion of Ukraine has all the signs of genocide of the Ukrainian People [17]; Verkhovna Rada’s Appeal of 2022 No. 2560-IX emphasizes that actions carried out on the orders of the highest military-political leadership of the Russian Federation and supported by the majority of its citizens, among other things, commit genocide of the Ukrainian People [18].

Verkhovna Rada’s Appeal of 2023 No. 2942-IX states that on February 24, 2022, it switched to open armed aggression, accompanied, among other things, by crimes of genocide, and that Russia is committing genocide of the Ukrainian People [19]. Verkhovna Rada’s Statement of 2022 No. 2630-IX indicates that the full-scale armed invasion of Russia is accompanied, among other things, by acts of genocide of the Ukrainian People. The statement demands that Russia, its political and military leadership be held accountable for, among other things, committing genocide of the Ukrainian People [20].

The need for precisely this kind of bringing Russia, its political and military leadership to responsibility is also stated by the Verkhovna Rada’s Statement 2022 No. 2632-IX, noting Russia’s implementation of the policy of genocide [21]. The fact that the unprovoked full-scale armed invasion of Russia is accompanied, among other things, by the genocide of the Ukrainian People, is also stated by the Verkhovna Rada’s Statement of 2022 No. 2692-IX [22] and the Verkhovna Rada’s Appeal of 2023 No. 2901-IX [23]. Verkhovna Rada’s Appeal of 2023 No. 2899-IX defines the war unleashed by Russia with the support of Belarus against Ukraine as aimed at the genocide of the Ukrainian People [24]. Verkhovna Rada’s Statement of 2022 No. 2787-IX states that during the full-scale invasion of Russia about 35 thousand war crimes and acts of signs of genocide of the Ukrainian People [25]; such genocide is also indicated by the Verkhovna Rada’s Resolution of 2023 No. 3260-IX [26].

Verkhovna Rada’s Resolution of 2022 No. 2829-IX indicates such components of the actions of Russia as armed aggression against Ukraine, genocide of the Ukrainian People and deportation of Ukrainians [27]. Certain acts of the Verkhovna Rada contain other formulations regarding the object of genocide; thus, Verkhovna Rada’s Statement of 2023 No. 3468-IX speaks of the genocide of the Ukrainian population in the territories of Ukraine seized by the aggressor state [28]. The Verkhovna Rada’s Appeal of 2022 No. 2594-IX writes that the large-scale armed invasion of the Russian armed forces in Ukraine is accompanied by acts of genocide [29], the Verkhovna Rada’s Statement of 2023 No. 2961-IX has a similar wording [30]. Verkhovna Rada’s Appeal of 2023 No. 3118-IX speaks of the ongoing genocidal war of Russia against the Ukrainian People [31].

However, it is precisely the category of genocide of the Ukrainian People that is the most stable in assessing the aggressor’s actions; in addition to the acts described, it is applied by the joint Statement of July 2, 2022, which speaks of aggression on the part of Russia, which aims, among other things, at genocide of the Ukrainian People [32]. The specified normative acts name both Russia as a state, and the political and military leadership of Russia and other persons, for example, the leadership and participants of the “Wagner group” as the subjects of such genocide, as indicated by the Verkhovna Rada’s

Resolution of 2023 No. 2903-IX [33]. Verkhovna Rada’s Statement of 2023 No. 2961-IX states that, among other things, the crime of genocide was committed by Russia’s armed forces Fand the armed formations under its control [34]. Verkhovna Rada’s Statement of 2023 No. 3078-IX classifies the systematic organization and implementation of genocide as characteristic features and consequences of rashism [35].

Acts of the Verkhovna Rada also establish the components of the genocide of the Ukrainian People, namely: the forced deportation of thousands of Ukrainian children to the territory of the aggressor state or within the temporarily occupied territories of Ukraine, including the desire to destroy their national identity (Verkhovna Rada’s Appeal of 2022 No. 2306-IX [36] ; Verkhovna Rada’s Appeal of 2023 No. 2947-IX [37]); systematic deliberate killings of civilians with missile weapons (Verkhovna Rada’s Statement of 2022 No. 2595-IX [39]); pre-planned attacks on the energy infrastructure of Ukraine, their methodical destruction (Verkhovna Rada’s Statement of 2022 No. 2788-IX [40]); purposeful destruction by the Russian Federation cultural heritage sites, educational and healthcare institutions, ordinary multi-storey residential buildings of the Ukrainian People (Verkhovna Rada’s Appeal of 2022 No. 2742-IX [41] and Verkhovna Rada’s Appeal of 2023 No. 2901-IX [42]) and undermining the dam of the Kakhovka hydroelectric power station (Verkhovna Rada’s Appeal of 2023 No. 3142-IX [43]).

In addition to stating the genocide of the Ukrainian People and condemning it, the acts of the Verkhovna Rada invite foreign states and international organizations to recognize the criminal actions of Russia in Ukraine as genocide of the Ukrainian People; among other things, such or similar language contains the above Verkhovna Rada’s Statement of 2022 No. 2788-IX; Verkhovna Rada’s Appeal of 2022 No. 2742-IX and 2023 No. 2901-IX; Verkhovna Rada’s Resolution of 2023 No. 2942-IX. Separate acts of the Verkhovna Rada welcome the following perfect recognitions of the genocide committed by the Russian Federation: this is the Verkhovna Rada’s Appeal of 2023 No. 2947-IX on the European Parliament resolution of February 16, 2023 and the Verkhovna Rada’s Appeal of 2022 No. 2504-IX on the Resolution of the Seimas of Lithuania 2022 [44].

Somewhat paradoxically, the studied acts of the Verkhovna Rada describe a limited number of steps in the procedural and organizational response specifically to the genocide of the Ukrainian people. Resolution of the Verkhovna Rada of 2023 No. 2965-IX only states that in the context of the investigation by the Office of the Prosecutor of the International Criminal Court (ICC) of the situation in Ukraine regarding the commission of war crimes, crimes against humanity and genocide on the territory of Ukraine, “a mechanism for conducting procedural actions on the territory of Ukraine needs in improvement taking into account the norms of the provisions and powers of this Office provided for by the Rome Statute” [45].

Verkhovna Rada’s Resolution of 2023 No. 2903-IX recommended that the Office of the Prosecutor General intensify cooperation with the ICC and increase the efficiency of the organization of procedural management of the pre-trial investigation of crimes committed in Ukraine by members of the “Wagner Group”, including crimes of genocide [46]. The above-mentioned Verkhovna Rada’s Statement of 2023 No. 2961-IX, referring to the ongoing ICC investigation, notes that fair punishment and prosecution of all persons guilty of committing the crime of genocide are mandatory and inviolable conditions for the restoration of justice and peace in Ukraine.

Corresponding brevity is also observed in non-parliamentary by-laws, for example, the Concept approved by Order of the Prosecutor General of 2023 No. 103 states that “the prosecutor’s office during the Russia’s armed aggression against Ukraine faced an unprecedented number of military and other international crimes” and writes that “such challenges determined the need for urgent changes in approaches to the investigation of criminal proceedings and the implementation of the priorities of law enforcement agencies”; however, the Concept does not contain any specific norms, specifically in relation to victims and witnesses of genocide [47].

Let us also recall the Action Plan for the Implementation of the Foreign Policy Strategy of Ukraine, approved by the Cabinet of Ministers of Ukraine 2023 order No. 327-r, which in paragraph 11 indicated as a result: “those responsible for the genocide of the Ukrainian People have been brought to justice,” and in the measurement of genocide this paragraph provided the Ministry of Foreign Affairs of Ukraine carried out “legal support in the UN International Court of Justice for a claim against Russia regarding accusations of genocide.” But this lawsuit is not a case for holding Russia accountable for committing genocide, and the ICJ is clearly not a body for holding individuals accountable. More pragmatic is paragraph 14 of this plan, which provides for the involvement by the Office of the Prosecutor General, the Security Service of Ukraine and the Ministry of Foreign Affairs of Ukraine of the capabilities of the EU Advisory Mission to Ukraine and other relevant EU institutions in the investigation, among other things, of the crime of genocide committed by Russian military personnel during armed aggression against Ukraine [48].

Given the large-scale Russian aggression, few new regulations regarding the Holodomor as genocide have been discovered [49], but they have been specified. In addition to the Verkhovna Rada’s Statement of 2023 No. 3488-IX in connection with the 90th anniversary of the Holodomor [50], this is also the Verkhovna Rada’s Appeal of 2022 No. 2740-IX to international organizations and parliaments of the world regarding the recognition of the Holodomor as genocide of the Ukrainian people [51], this is the Action Plan for 2022-2023 in connection with the 90th anniversary of the Holodomor [52] and a separate paragraph 117 of the Action Plan No. 327-r described above.

These acts provide the main vector of normative influence in the further recognition by foreign states and international organizations of the Holodomor of 1932-1933 in Ukraine as genocide of the Ukrainian People and in proving the consistency of Russia’s genocidal policy towards Ukraine.

After the start of the large-scale Russian invasion, no new regulations on the deportation of the Crimean Tatar People were identified; at the same time, Verkhovna Rada’s Statement No. 2672-IX condemned Russian crimes and policies of genocide of the Chechen People and stated that the Russian armed forces committed, in particular, genocide of the Chechen People [53]. Verkhovna Rada’s Appeal of 2022 No. 2633-IX stated that Russia has been committing genocide of enslaved peoples for centuries, and that “even while conducting a war of conquest against Ukraine, the Russian government is committing genocide of the peoples of Russia, in particular using the mobilization it announced for this purpose” [54].

However, the Law of Ukraine of 2023 No. 3504-IX set out a new version of Article 1 of the Law “On National Minorities (Community) of Ukraine” and indicated that what is necessary for recognition of “a settlement in which persons belonging to a national minority (community) traditionally live”, the requirement of continuous residence of a particular community “does not apply to persons deported or victims of genocide on the basis of nationality” [55].

Among other innovations in Ukrainian legislation, we cite the Medium-term priority areas of innovation activity at the industry level for 2023, which, as amended by the 2023 Governmental Resolution No. 1321, provide for the creation of integrated electronic systems for searching archival information about victims of genocide [56], and Criteria for evaluating publications permitted for import and distribution on the territory of Ukraine, approved by the order of the State Committee for Television and Radio of Ukraine 2023 No. 5, according to Article 3 of which publishing products containing materials whose content is aimed at promoting genocide cannot be imported and distributed [57].

It is necessary to add an analysis of judicial practice under Article 442 of the CCU and immediately state that as of January 2024, decisions of the Supreme Court or courts of appeal in the relevant proceedings have not yet been found. At the same time, the Unified Register of Judicial Decisions revealed at least four sentences passed by the district courts of Kyiv City (DCKC), and a relatively large number of rulings by the investigative judges of the DCKCs; These court decisions relate to crimes provided for in Part 2 of Article 442 of the CCU.

All identified sentences relate to punishment for a combination of crimes, including part 2 of article 442 of the Criminal Code; this is the verdict of the Darnitsky DCKC of 2022 in CP 22022101110000092 regarding crimes under Articles 109, 110, 436, 436-2, 442 of the CCU, for 6 years and 6 six months of imprisonment with confiscation of all property; this is the verdict of the Desnyansky DCKC in 2023 in CP 22022000000000316 regarding crimes under Articles 109, 110, 436-2, 442 of the CCU, for 3 years in prison without confiscation of property [59].

This is the verdict of the Shevchenkovsky DCKC in 2023 in CP 42022000000000379 issued in absentia in relation to crimes under Articles 109 and 442 of the CCU for 5 years of imprisonment with confiscation of all property [60]; this is also the verdict of the Shevchenko DCKC of 2023 in CP 42022000000000377 issued in absentia regarding crimes under Articles 442, 110, 109 of the CCU for 10 years of imprisonment with confiscation [61].

In CP 22022101110000092 and in CP 2202200000000316 it was about the placement of illegal publications on social networks by the accused, citizens of Ukraine and residents of Kyiv. Evidence of guilt specifically in relation to the crimes provided for in Part 2 of Article 442 of the CCU were separate expert opinions; at the same time, in CP 22022000000000316 the defendant admitted guilt, and in CP 22022101110000092 the defendant, a supermarket manager, partially admitted guilt; he told the court that he allegedly “called exclusively for the destruction of military personnel of the Armed Forces of Ukraine, and not citizens of Ukraine based on their nationality and identity”; these “arguments” were rejected by the court precisely according to the qualifications under Part 2 of Article 442 of the CCU.

Both CPs in terms of part 2 of Article 442 of the CCU related to several publications, but the question of the totality of crimes was not raised by the court; It follows from the verdicts that the convicted Ukrainian citizens probably did not create the texts of the publications, but rather distributed them. Regarding the verdicts of the Shevchenko DCKC in absentia, an analysis of information from the Ukraine’s web portal “Judicial Power” indicates that in CP 42022000000000379, a Russia’s citizen and aggressor’s propagandist Anton Kuznetsov-Krasovsky was convicted; and in CP 42022000000000377, Russia’s citizen and aggressor’s propagandist Armen Gasparyan was accordingly convicted.

Here, the trial court found that the defendants, as key figures in the Russian television channel “RT”, themselves produced materials calling for genocide and then distributed them; the court qualified under Part 2 of Article 442 of the CCU the actions of Armen Gasparyan, who “in order to justify the need to carry out genocide of the Ukrainian People, calling for it, constantly replaces the concepts of “nationalism” with “Nazism”, reliably understanding the difference between these terms and deliberately misleading persons to whom his appeals are directed”.

The court stated that, in accordance with forensic linguistic examinations, Gasparyan’s book contains information about the need for partial destruction of a group of people or individual representatives from among the Ukrainian nation based on their national and ideological affiliation [62]. Regarding Kuznetsov-Krasovsky, the court referred to an expert opinion that the accused’s publications contained “a call for the genocide of the Ukrainian People by taking the lives and physically destroying their representatives. This call is public and expressed in statements of imperative (incentive) modality”.

We add that, as follows from the decisions of the Shevchenkovsky DCKC, in CP 42022000000000424 a special pre-trial investigation is ongoing under Articles 109 and 110, Part 2 of Article 442 of the CCU; the subject of the case is an article written by a Russia’s citizen in which, as the court states, he “systematically, uncompromisingly and without alternatives promoted his ideas” about the alleged “inability of the Ukrainian state to continue to exist, the inferiority and second-class status of the Ukrainian nation, as well as the need for its destruction” [63 ].

An analysis of the “Judicial Power” portal indicates that in this case we are talking about the Russia’s propagandist Timofey Sergeytsev. He wrote a criminal article published in April 2022 by the Russian state news agency “RIA Novosti”, promoting genocidal calls against the Ukrainian People. Another case, under Article 436, Part 2 of Article 442 of the CCU, continues in CP 42022000000001149 [64]; and an analysis of the portal “Judicial Power” indicates that the accused is the Russia’s propagandist Yegor Kholmogorov, a “colleague” of the mentioned Anton Kuznetsov-Krasovsky and the author of the term “Russian Spring”.

The ruling of the investigative judges of the DCKCs in other proceedings indicates that the qualification of acts of dissemination of materials calling for genocide is based precisely on the expert conclusions cited by the judges. As an example in CP 22023011000000177 under articles 109, 110, 161, 436-2, part 2 of article 442 of the CCU, the judge cites this conclusion of a linguistic (semantic-textual) examination; it, unlike the cases described above, is general and establishes that the statements of the accused “call for genocide, violent change of the constitutional system, change of borders of the territory of Ukraine in violation of the order established by the Constitution of Ukraine, combined with incitement of national hatred, aimed at inciting national enmity.”

It is noteworthy that in this case the court refused to approve the agreement to admit the citizen’s guilt and is analyzing the case on its merits [65]; a review of the portal “Judicial Power” indicates that the relevant person is Alexander Sosinovich; former proofreader for the “Progressive Socialist Party of Ukraine”.

The corresponding expert formulations quoted by the DCKCs’ judges have a certain variability; Thus, in CP 42022000000001152 under Part 2 of Article 442, Article 110 of the CCU, the expert’s conclusion established the presence in the defendant’s publications of “sayings containing public calls for the genocide of the Ukrainian People, for changing the boundaries of the territory and state border of Ukraine, as well as signs of incitement to hatred” [66] . In CP 22022101110000656 under articles 436-2, 436, 442, 110, 109, 258-2 of the CCU, the expert’s conclusion established that the text materials of the messages posted on the accused’s page “contain public calls from persons from among the Ukrainian nation (patriotic Ukrainians) to the basis of their national and ideological affiliation” [67].

In CP 420220000000001226 under Article 110, part 2 of Article 442 of the CCU, the conclusion of a linguistic examination states that the publications and speeches of the accused Russia’s citizen “contain public calls by the speaker to the target audience to physically destroy, kill the “carriers of the idea” of Ukrainization, that is, to destruct the Ukrainian culture, language, customs, etc.”; The expert qualifies this as a call by the accused to commit genocide [68]. In addition to the above mentioned CPs, part 2 of Article 442 of the CCU is the subject of investigation, usually in the aggregate of crimes, at least in CP 4202200000001149 in absentia [69]; in CP 22023000000000733 in absentia [70]; in UP 42022000000001554 [71] and in CP 42020010000000002 in absentia in relation to a resident of the occupied Crimea; the latest production is interesting to us because it was started before the start of the Russia’s large-scale aggression [72].

Information on cases under part 1 of Article 442 of the CCU is not publicly available. The proceedings described above raise questions about the real and ideal totality of crimes in publications containing illegal appeals; if the qualifications of the Ukrainian citizens described above in relation to part 2 of Article 442 of the CCU do not raise fundamental questions for an external observer, then key Russian propagandists could clearly be assessed by the court not only in Part 2 of Article 442 of the CCU, but also in the dimension of complicity in the commission provided for in part 1 of CCU’s Article 442 as genocide.

The question also arises of identifying acts of citizens of Ukraine provided for in part 2 of Article 442 of the CCU only in Kyiv: there is a possibility that in other regions of Ukraine, law enforcement agencies and courts provide such actions with a different qualification, without applying part 2 of Article 442 of the CCU. The implementation of the category of genocide and counteraction to this international crime in the national legal system during large-scale Russian aggression and occupation of the Crimea exacerbates the relevance of the development and subsequent analysis of judicial practice under Article 442 of the CCU. Such implementation must comply both with international standards translated into practice by the UN ICJ and the ICC, and with the principle of the rule of law.

Key issues should include the adoption of genocide investigation algorithms and appropriate international cooperation; prospects for the reflection in judicial practice of Verkhovna Rada’s acts on genocide, approved over the past two years, and aspects of distinguishing complicity in genocide and public calls for genocide, the production and distribution of materials with such calls.

The most acute challenge is the lack of sentences specifically under part 1 of Article 442 of the CCU, including the punishment of accomplices in the genocide of the Ukrainian People. This issue has a material dimension – regarding the clear qualification of the actions of such persons, especially considering the described acts of the Verkhovna Rada, which actually assess certain specific actions as components of the genocide of the Ukrainian People. This issue also has a procedural dimension regarding the procedural prospects of the trial of specific perpetrators or other accomplices of genocide, including instigators of genocide, and the trial of the organizers of genocide.

The main challenges of the current situation include procedural risks from the lengthy investigation of the relevant proceedings and challenges associated with the violation of the rights of victims of genocide for a reasonable period of investigation of this international crime, guaranteed by Article 5 of the 1948 Convention and Articles 2 and 6 of the ECHR; corresponding challenges are reflected in certain current court’s decisions in the above-described case on the deportation of the Crimean Tatars [73]. Relevant aspects should be the subject of new scientific research.
Literature

  1. https://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf
  2. https://web.archive.org/web/20211205170912/https://zakon.rada.gov.ua/laws/show/995_155
  3. https://old.gp.gov.ua/ua/mijbogato.html
  4. https://zakon.rada.gov.ua/laws/show/2341-14
  5. https://pravoua.com.ua/ua/store/pravoukr/2024/
  6. https://old.gp.gov.ua/ua/mijbogato.html
  7. https://web.archive.org/web/20240109145431/https://reyestr.court.gov.ua/Review/59659658
  8. https://web.archive.org/web/20240109150639/https://ark.gp.gov.ua/ua/news.html?_m=publications&_t=rec&id=208148&fp=301
  9. https://web.archive.org/web/20240109145430/https://reyestr.court.gov.ua/Review/115411712
  10. https://reyestr.court.gov.ua/Review/95738066
  11. https://reyestr.court.gov.ua/Review/92433922
  12. https://reyestr.court.gov.ua/Review/91766391
  13. https://reyestr.court.gov.ua/Review/111112837
  14. https://reyestr.court.gov.ua/Review/82126917
  15. https://reyestr.court.gov.ua/Review/92748693
  16. https://zakon.rada.gov.ua/laws/show/2903-20
  17. https://zakon.rada.gov.ua/laws/show/2559-20
  18. https://zakon.rada.gov.ua/laws/show/2560-20
  19. https://zakon.rada.gov.ua/laws/show/2942-20
  20. https://zakon.rada.gov.ua/laws/show/2630-20
  21. https://zakon.rada.gov.ua/laws/show/2632-20
  22. https://zakon.rada.gov.ua/laws/show/2692-20
  23. https://zakon.rada.gov.ua/laws/show/2901-20
  24. https://zakon.rada.gov.ua/laws/show/2899-20
  25. https://zakon.rada.gov.ua/laws/show/2787-20
  26. https://zakon.rada.gov.ua/laws/show/3260-20
  27. https://zakon.rada.gov.ua/laws/show/2829-20
  28. https://zakon.rada.gov.ua/laws/show/3468-20
  29. https://zakon.rada.gov.ua/laws/show/2594-20
  30. https://zakon.rada.gov.ua/laws/show/2961-20
  31. https://zakon.rada.gov.ua/laws/show/3118-20
  32. https://zakon.rada.gov.ua/laws/show/n0001100-22
  33. https://zakon.rada.gov.ua/laws/show/2903-20
  34. https://zakon.rada.gov.ua/laws/show/2961-20
  35. https://zakon.rada.gov.ua/laws/show/3078-20
  36. https://zakon.rada.gov.ua/laws/show/2306-20
  37. https://zakon.rada.gov.ua/laws/show/2947-20
  38. https://zakon.rada.gov.ua/laws/show/3099-20
  39. https://zakon.rada.gov.ua/laws/show/2595-20
  40. https://zakon.rada.gov.ua/laws/show/2788-20
  41. https://zakon.rada.gov.ua/laws/show/2742-20
  42. https://zakon.rada.gov.ua/laws/show/2901-20
  43. https://zakon.rada.gov.ua/laws/show/3142-20
  44. https://zakon.rada.gov.ua/laws/show/2504-20
  45. https://zakon.rada.gov.ua/laws/show/2965-20
  46. https://zakon.rada.gov.ua/laws/show/2903-20
  47. https://zakon.rada.gov.ua/laws/show/v0103905-23
  48. https://zakon.rada.gov.ua/laws/show/327-2023-р
  49. https://zakon.rada.gov.ua/laws/show/768-2023-п
  50. https://zakon.rada.gov.ua/laws/show/3488-20
  51. https://zakon.rada.gov.ua/laws/show/2740-20
  52. https://zakon.rada.gov.ua/laws/show/1055-2022-р
  53. https://zakon.rada.gov.ua/laws/show/2672-20
  54. https://zakon.rada.gov.ua/laws/show/2633-IX
  55. https://zakon.rada.gov.ua/laws/show/3504-20f
  56. https://zakon.rada.gov.ua/laws/show/1321-2023-п
  57. https://zakon.rada.gov.ua/laws/show/z1660-23
  58. https://reyestr.court.gov.ua/Review/107195357
  59. https://reyestr.court.gov.ua/Review/112569403
  60. https://reyestr.court.gov.ua/Review/109397364
  61. https://reyestr.court.gov.ua/Review/114881278
  62. https://reyestr.court.gov.ua/Review/105339343
  63. https://reyestr.court.gov.ua/Review/104950234
  64. https://reyestr.court.gov.ua/Review/111941577
  65. https://reyestr.court.gov.ua/Review/113393073
  66. https://reyestr.court.gov.ua/Review/112421624
  67. https://reyestr.court.gov.ua/Review/110510498
  68. https://reyestr.court.gov.ua/Review/109915216
  69. https://reyestr.court.gov.ua/Review/112103811
  70. https://reyestr.court.gov.ua/Review/112890108
  71. https://reyestr.court.gov.ua/Review/113512386
  72. https://reyestr.court.gov.ua/Review/109413241
  73. https://web.archive.org/web/20240312191217/https://reyestr.court.gov.ua/Review/117441982

Similar Posts