Translated by Ollie Richardson & Angelina Siard

21:09:21
22/03/2017

Aleksey Romanov

Very few people know that in the Ukrainian Criminal Code there is Article 161, which is directed against the incitement of hostility and hatred on national, social, religious, sexual, etc. grounds, and also on the grounds of place of residence.

Article 161. Violation of citizens’ equality based on their race, nationality or religious preferences:

1. Willful actions inciting national, racial or religious enmity and hatred, humiliation of national honor and dignity, or the insult of citizens’ feelings in respect to their religious convictions, and also any direct or indirect restriction of rights, or granting direct or indirect privileges to citizens based on race, color of skin, political, religious and other convictions, sex, ethnic and social origin, property status, place of residence, linguistic or other characteristics, shall be punishable by a fine up to 50 tax-free minimum incomes, or correctional labor for a term up to two years, or restraint of liberty for a term up to five years, with or without he deprivation of the right to occupy certain positions or engage in certain activities for a term up to three years.

2. The same actions accompanied with violence, deception or threats, and also committed by an official, shall be punishable by correctional labor for a term up to two years, or imprisonment for a term up to five years.

3. Any such actions as provided for by paragraph 1 or 2 of this Article, if committed by an organized group of persons, or where they caused death of people or other grave consequences, shall be punishable by imprisonment for a term of two to five years.

Somehow it seems to me that according to this article, now it is possible to imprison a considerable part of the population of our country. All these poisonous tongues and thick heads of Nazis, fascists, bloggers, and activists.

Or maybe not, because there can be a penalty. This crime is punishable:

• either a penalty from 200 to 500 non-taxable minimum incomes (3400-8500 UAH);
• or a restriction of freedom for a period of up to 5 years.

Also (in addition) the court can deprive of the right for a period of up to 3 years:

• to hold certain positions;
• to be engaged in certain activities.

And also this article has a part 2, which is more strict. According to it the penalty can be from 8500 to 17000 UAH, or prison from 2 to 5 if something from the aforementioned:

• was combined with violence, deception or threats;
• or it is done by an official.

And also this article has a part 3: there the PERIOD FROM 5 TO 8 YEARS, if the actions provided in parts 1 and 2:

• are done by an organized group of persons;
• or entailed heavy consequences.

The problem is in that according to part 1 of Article 161 of the Ukrainian Criminal Code it is enough to bring to responsibility only with a claim of the victim. This is called “in the produce of a private prosecution” – it is provided part 1 of Article 477 of the Criminal PROCEDURE code.

Article 477. Concept of private criminal proceedings:

1. Private criminal proceedings means proceedings which may by initiated by investigator, public prosecutor only based on the victim’s application in respect of criminal offences established in:

a) paragraph 1 of Article 122 (intentional bodily injury of moderate severity, without aggravating circumstances), of Article 125 (intentional bodily injuries of light severity), paragraph 1 of Article 126 (intentional infliction of a blow or beating or committing other violent acts without aggravating circumstances), paragraph 1 of Article 129 (threats of murder without aggravating circumstances), of Article 132 (disclosing information on medical examination for AIDS or any other incurable infectious disease), paragraph 1 of Article 133 (infecting with venereal disease without aggravating circumstances), paragraph 1 of Article 135 (leaving in danger without aggravating circumstances), paragraph 1 of Article 136 (failure to provide assistance to the person being in the state which is harmful to his life, without aggravating circumstances), paragraph 1 of Article 139 (failure for a medical worker to provide assistance to the patient without aggravating circumstances), paragraph 1 of Article 142 (illegal experiments on a human being, without aggravating circumstances), of Article 145 (illegally disclosing medical secret), paragraph 1 of Article 152 (rape without aggravating circumstances), of Article 154 (forcing to sexual relations), paragraph 1 of Article 161 (violation of equality of citizens on the ground of their race, ethnic origin or religious beliefs, without aggravating circumstances), paragraph 1 of Article 162 (breaking inviolability of home without aggravating circumstances), paragraph 1 of Article 163 (breaking the secrecy of letters, telephone conversations, telegraph or any other correspondence transmitted through means of communication or computer, without aggravating circumstances), paragraph 1 of Article 164 (avoiding payment of alimony for children, without aggravating circumstances), paragraph 1 of Article 165 (avoiding payments for dependant parents, without aggravating circumstances), paragraph 1 of Article 168 (disclosing the secrecy of adoption, without aggravating circumstances), paragraph 1 of Article 176 (violation of intellectual property rights and related rights, without aggravating circumstances), paragraph 1 of Article 177 (violation of the right to invention, utility model, design, topography of integrated circuit, variety of plants, innovation), of Article 180 (impeding worship), of Article 182 (violation of privacy), paragraph 1 of Article 194 (intentionally destroying or damaging property, without aggravating circumstances), of Article 195 (threat of destroying property), Article 197 (disrespecting duties with regard to protection of property), Article 203-1 (illegal trafficking in laser disks, templates, equipment and raw material for fabrication thereof), paragraph 1 of Article 206 (obstructing legal business activities, without aggravating circumstances), Article 219 (bankrupting in terms of actions which caused damage to lenders), Article 229 (illegally using a brand, trade mark, qualified indication of the origin of good), Article 231 (illegally collecting in view of using or illegally using information which constitutes commercial or bank secret), Article 232 (disclosing commercial or bank secret), Article 232-1 (illegally using insider information in terms of actions which caused damage to rights, freedoms and interests of private citizens or interests of legal persons), Article 232-2 (concealing information on issuer’s activities), paragraph 1 of Article 355 (forcing to fulfill or not to fulfill civil and legal obligations, without aggravating circumstances), Article 356 (arbitrariness in terms of actions which have caused damage to rights and interests of citizens or interests of an owner), paragraph 1 of Article 361 (unauthorized interference in the operation of computing engines (computers), automated systems, computer networks or electricity supply networks, without aggravating circumstances), paragraph 1 of Article 362 (unauthorized actions with information processed in computing engines (computers), automated systems, computer networks or stored in mediums of such information, such actions being committed by the person who has access thereto, without aggravating circumstances), Article 364-1 (abuse of powers by an official of a private law legal person irrespective of its organisation and legal form), Article 365-1 (excess of powers by an official of a private law legal person irrespective of its organisation and legal form), Article 365-2 (abuse of powers by persons providing public services) of the Criminal Code of Ukraine;

b) paragraph 2 of Article 122 (intentional bodily injuries of moderate severity, with aggravating circumstances), paragraph 1 of Article 126 (beating and victimizing with aggravating circumstances, except 164 when committed by a group of individuals), Article 128 (unintentional bodily injuries of grave and moderate severity), paragraph 1 of Article 130 (willfully exposing a person to the risk of infecting with AIDS or any other incurable infectious disease which is harmful to the life of human being), paragraph 1 of Article 146 (illegally depriving a person of freedom or kidnapping a person, without aggravating circumstances), paragraph 2 of Article 152 (repeatedly raping or raping an underage female or male), paragraph 1 and 2 of Article 153 (violent sexual intercourse in an unnatural way), paragraph 1 of Article 286 (disregard of road laws or vehicle operating rules by drivers, without aggravating circumstances), paragraph 1 of Article 296 (hooliganism, without aggravating circumstances), paragraph 2 of Article 361 (unauthorized interference in the operation of computing engines (computers), automated systems, computer networks or electricity supply networks, with aggravating circumstances), paragraph 2 of Article 362 (unauthorized actions with information processed in computing engines (computers), automated systems, computer networks or stored in mediums of such information, such actions being committed by the person who has access thereto) of the Criminal Code of Ukraine – if committed by spouse of the victim;

c) Article 185 (theft, except theft committed by an organized group), Article 186 (robbery, except robbery committed by an organized group), Article 189 (extortion, except when committed by an organized group, as well as extortion associated with violence harmful to the life and health of human being), Article 190 (fraud, except fraud committed by an organized group), Article 191 (misappropriation of property or taking property in possession through abuse of official position, except when committed by an organized group), Article 192 (causing material damage through deceit or misuse of confidence), paragraph 1 or 2 of Article 289 (illegally taking over a vehicle, without especially aggravating circumstances), Article 357 (theft, misappropriation, extortion of documents, stamps, seals, taking over them through fraud or abuse of official position or damaging them) of the Criminal Code of Ukraine, if committed by spouse of the victim, his other close relative of family member, or if committed by a person who was employed by the victim and caused damage to the property of the victim exclusively.

I.e. a claim about a crime can only be written by those who considers themselves to be a victim of this crime. But this only concerns part 1 of Article 161 of the Ukrainian Criminal Code.

In parts 2 and 3 (i.e. if incitement of hatred was combined with violence, deception, or threats, it is done by the official, by a person of an organized group, or had heavy consequences) – ANYONE can submit a claim.

Probably, it is better to write a claim to the Prosecutor’s Office. Why? Because, for example, the regiment “Azov” is in the structure of the Ministry of Internal Affairs.

About limitation periods. Under Article 161 of the Ukrainian Criminal Code “for incitement of hatred” there are limitation periods. They are provided by Article 49 of the same Ukrainian Criminal Code:

Article 49. Discharge from criminal liability due to limitation period:

1. A person shall be discharged from criminal liability if the following periods have elapsed from the date of the criminal offense to the effective date of the judgment:

(a) two years where a minor offense has been committed and the prescribed punishment is less severe than the restraint of liberty;

(b) three years where a minor offense has been committed and the prescribed punishment is the restraint of liberty or imprisonment;

(c) seven years where an offense of medium gravity has been committed;

(d) fifteen years where a grave offense has been committed;

(e) twenty years where a special grave offense has been committed.

2. The statute of limitations shall be saved where a person who committed a criminal offense evaded investigation or trial. In such cases the running of the statute of limitations is resumed as of the date of the person’s surrender or apprehension. In this case the person shall be discharged from liability if twenty years elapsed after the commission of the offense.

3. The statute of limitation shall be forfeited where a person, before the terms specified in paragraphs (1) and (2) of this Article have expired, commits another medium grave, grave or special grave offense. In this case a limitation period starts on the date on which such new crime is committed. Each offense gives rise to its own period of limitation.

4. Where a person has committed a special grave offense punishable by life imprisonment, the issue of limitation shall be decided by a court. Where a court rules out the possibility to apply a period of limitation, a sentence of life may not be imposed and is commuted to an imprisonment for a determinate term.

5. The statute of limitation shall not apply where any crime against the peace and humanity, as provided for in Articles 437 through 439, and paragraph 1 of Article 442 of this Code.

Generally (if the crime is qualified according to part 1 of Article 161 of the Ukrainian Criminal Code) the limitation period is 3 years (a crime of small gravity). It means that March-December of 2014, 2015, and 2016 still fall under this article. But, if part 2 or part 3 of Article 161 takes place – this is, respectively, for average or heavy weight of a crime:

Article 12. Classification of criminal offenses:

1. Depending on the gravity, criminal offenses shall be classified as minor offenses, medium grave offenses, grave offenses, or special grave offenses.

2. A minor criminal offense shall mean an offense punishable by imprisonment for a term up to two years or a more lenient penalty.

3. A medium grave offense shall mean an offense punishable by imprisonment for a term up to five years.

4. A grave criminal offense shall mean an offense punishable by imprisonment for a term up to ten years.

5. A special grave offense shall mean an offense punishable by more than ten years of imprisonment or a life sentence.

So according to them a limitation period of 5-10 years accordingly.

So organized groups of persons can be brought to responsibility up to 2027 – if they are engaged in it even now. It is possible to package them by whole news agencies; to bring the police van to the offices of  “1+1”, “5th channel”, and “Hromadske”, and to pull them out in ranks, one by one.

I think that for someone it can be an article, and for others a political program. Point No. 1: “all will be jailed”.

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