How Pro-Russian Collaborators Are Dealt With in Ukraine

Fighting insurrectionism under constitutional constraints

1 June 2022

Bohdan Bernatskyi

Future of Ukraine Fellow

The Ukrainian government and parliament are actively seeking viable solutions to prohibit pro-Russian political parties and remove them from the political landscape in Ukraine.

The Ukrainian Constitution has many inherent controversies. The Constitution and international human rights standards are at odds with the real security needs of the country. Namely, the text allows the prohibition of all activities of a political party under a court judgement, though no procedure is in place to terminate the mandate of MPs of banned parties.

Olha Sovhyria, a member of the Servant of the People (the ruling party in Ukraine), representative of the Rada at the Constitutional Court of Ukraine, addressed the necessity to have a targeted approach in dealing with the deputies of banned parties. Her main concern is that many local councils will lose their authority once all deputies concerned are dismissed. She stands against the blanket removal of all deputies belonging to pro-Russian parties.

Now the Rada is considering several bills relating to the prohibition of pro-Russian political parties, symbols, and movements. The most contentious are 7318 and 7318-1 and, although the latter is presented as an alternative, the difference seems subtle. Both amendments fully revoke passive suffrage for members and founders of the parties which have been banned ( known in Ukraine as ‘the 11th list’). This idea has already seemingly gained the support of about 50 MPs who are recorded as authors, with the head of the political party Servant of the People joining them.

Another striking case comes from proposed bill 7362, which would empower the National Security and Defence Council to terminate the mandate of MPs, local deputies, and mayors, though only during martial law. The realisation of such an initiative in practice seems quite controversial. Now, MPs of the Opposition Platform — For Life (OPFL is the leading pro-Russian party in Ukraine) are voting in the Rada, considering bills and so forth, while the activities of their party are terminated. How that termination should look in practice remains unclear.

MPs proved themselves to be efficient with the voting in of another piece of legislation —bill 7172-1. The Achilles’ heel in banning political parties was the Kyiv Administrative Court which is unreformed and corrupt. It operates in a grey zone of Ukrainian justice. Henceforth, the cases of the banning of political parties will no longer be subject to the consideration of this broken institution.

New provisions were added to the article governing the grounds for the prohibition of political parties. These grounds are now expanded by two more items to specifically hit political supporters of Russia. However, the amendments are rather technical in nature and have not changed the status quo of pro-Russian parties in Ukraine yet.

While public opinion to prohibit pro-Russian parties is pressing, the international stakeholders, such as International Foundation for Electoral Systems (IFES), draw conclusions that are far from encouraging about the latest legislative developments envisaged by the law 7172-1.

The Ukrainian parliament in the end decided not to ban parties by the means of a legal act — however, the following ideas were given a lot of consideration by MPs. Some have proposed resurrecting the lustration act, which was declared by the ECtHR as contradicting the Convention. Others are inclined to ban political activities for members of the 11th list unless they quit the party concerned or/and publicly declare loyalty to the Ukrainian state. Thus far, any consensus on the legal response to pro-Russian parties seems elusive.

Outlawing Pro-Russian Parties as a Temporary Response

On March 19th, 2022, the National Security and Defence Council had suspended the activities of the parties ‘Opposition Platform – For Life,’ ‘Party of Shariy,’ ‘Our,’ ‘Opposition Bloc,’ ‘Left Opposition,’ ‘Union of Left Forces,’ ‘State,’ ‘Progressive Socialist Party of Ukraine,’ ‘Socialists,’ and ‘Bloc of Vladimir Saldo’ — these are the 11th list. These parties are deemed to support Russia in its aggressive war. The Council has not made public it’s reasoning, but evidence of unconstitutional activities by these former parties is evident.

Vladimir Saldo (former mayor of Kherson) is publicly collaborating with the Russian occupying administration. He now holds the so-called post of ‘head of the Kherson regional state administration.’ Ukrainian prosecutors have charged him with high treason.

Anatoly Shariy (head of ‘Party of Shariy’) works for Russian state media propaganda. A rather uncomfortable fact for Shariy is that he is one of the main figures opposing EU-UA integration while residing in Spain.

The forever young revolutionary Petro Symonenko (former leader of the long-standing Communist Party of Ukraine) was appointed head of a new party called ‘Left Opposition.’ It is worth recalling that the Ukrainian Communists condemned the Revolution of Dignity in 2014 and supported the occupation of Crimea and Donbas. Many regional heads of the Communist Party of Ukraine have been under prosecution for more than six years.

In 2019 at Ukraine’s last parliamentary elections, the Russian-centric political party ‘The Opposition Platform – For Life’ (OPFL) gained 43 out of 450 seats in the Rada. As a result, it was the second-largest party in the Rada. If the aforementioned parties were regional or marginalised, the OPFL, on the other hand, worked throughout Ukraine and has more than 3,800 deputies on a local level. The ‘Party of Shariy’ by way of comparison, has only about 60 local deputies.

In 2019 Ukrainian presidential candidate Yuriy Boyko and head of the political council of the Ukrainian party Opposition Platform – For Life Viktor Medvedchuk meet with Russian Prime Minister Dmitry Medvedev and Chairman of the Management Board of PJSC Gazprom Alexey Miller. Source: Government.ru (https://commons.wikimedia.org/wiki/File:Miller,_Medvedev,_Boyko,_Medvedchuk.jpg), „Miller, Medvedev, Boyko, Medvedchuk“, https://creativecommons.org/licenses/by/4.0/legalcode

The OPFL was much larger than most other political entities. Members of the OPFL were owners of the largest Ukrainian news TV channels ‘112 Ukraine,’ NewsOne, ZIK, though the Council took them down in February 2021. One can hardly begin to estimate the budget spent by the party’s bosses on the most loss-making business in Ukraine, their TV news channel. Evidently, the official incomes of the party were not enough to cover the expenses of their own media empire.

The European Commission promised to block Russian state-owned broadcasters in the sixth package of EU sanctions, adding that RT and Sputnik had been already disconnected in the EU. Some commentators, however, are still expressing concern over the rights of Russian state media, which is funded through corrupted funds. Banning Russian media is therefore a remarkable step toward fighting the war propaganda.

The OPFL stands as a clear example of an insurrectionary party with a single goal, to subvert Ukrainian sovereignty. Several former members of the OPFL, such as Ilya Kiva, are now promoting violence against Ukrainians on Russian TV. Medvedchuk, the most visible Russian proxy, attempted to flee the country, though was unsuccessful. The members of the party appeared to be the most disloyal to Ukraine, as is suggested by the case of the Mayor of Kupyansk, Gennadiy Matsegora (member of the OPFL), who negotiated with the Russians on the transfer of power in the city. Now, Kupyansk is one of the key logistical hubs for the RFA.

The members of the OPFL serve not only as political proxies on the ground but corroborate with Russian armed forces by spying on the Ukrainian Army. The Head of the OPFL branch in the city council of Izium, Anatolii Fomychevskyi showed the occupiers the less defended path. The latter allowed RFA to take control over the strategic position and continue its offensive operation. The Izium area is now a place of fierce battles.

The political leader of the party ‘Our’ had the honoured to be mentioned by the British Intelligence as the harbinger of the war. Their report claimed Yehven Murayev was a potential puppet ruler after the occupation of Ukraine. On 25 February 2022, Murayev called upon the Ukrainian government ‘to capitulate’ and disappeared afterwards. His location is unknown but obviously, he is hiding from Ukrainian law enforcement agencies somewhere in between Kursk and Vladivostok.

The former head of the ‘Our’ branch in the city of Mariupol (current member of the OPFL) Kostiantyn Ivashchenko was appointed by the occupiers as the so-called ‘mayor’ of Mariupol on 4 April 2022, in times when the Ukrainian Army was still defending the city.

Russia managed to infiltrate the Ukrainian political environment with different actors who focused and addressed messages to various audiences. The flagship role in the proxy’s network was given to the OPFL. Shariy (and his party) instead got the place of a YouTube political observer who uses populist slogans, criticises the government and spreads disinformation. The main asset for ‘Our’ and their head Murayev was the second-largest news channel ‘Nash’ (Our).

Having its specific niche of pro-Russian actors, though, promote identical narratives, i.e., Ukraine is under the control of Western countries, advancing the idea of Euroscepticism, blaming the integration to NATO, diminishing national identity and propelling Russian-centric ideologies.

On 24 May 2022, the Ministry of Justice submitted a court petition to ban the parties from 11th list. The Minister is confident that collected evidence and facts are more than enough to render the decision on the dissolution of these parties. It is expected that the first instance court will be able to hear all cases till the end of Summer. Nonetheless, such expectations seem to be over-optimistic. The Communist party case has been stretched out for years.

To Fight or to Appease?

Professor of Constitutional Law at NYU School of Law Samuel Issacharoff in his pioneering study of fragile democracies portrayed the most devious enemies of democracy. He defined the latter as insurrectionary parties. Their raison d’être is to subvert the political process as a free competition between competitive actors and ‘immunise themselves against electoral challenges.’ The goals to pursue, though, depend exclusively upon the will of a patron (drug cartels, paramilitary groups, criminal organisations, or hostile foreign entities/state), while the real engagement with citizens for such parties serves merely as a facade. 

Two distinct cases echo the current challenges raised by the war in Ukraine. Surprisingly or not, they referred to the pre-war (WWII) periods in Czechoslovakia and Finland. So far, many observers have compared the annexation of Ukrainian territories by Russia with the annexation of the Sudetenland in 1938 by Nazi Germany.

If we follow the political developments in Czechoslovakia, the parallels may seem more depressing. The activities of German-backed party Sudentendeutsche Heimatfront in the German-speaking part of Czechoslovakia had significantly contributed to the creation of a pretext for occupation. Hiding behind democratic slogans, the Sudeten German party’s principal aim was to overthrow the government’s sovereignty— an aim in which they obviously succeeded. The policy of appeasement led to the signing of the Munich Agreement and was followed by well-known events.

One cannot but draw parallels between the Munich Agreement and the Minsk Accords, the 2014-22 appeasement policy of Berlin-Paris and that of London-Paris in 1938. Nevertheless, these parallels ceased to be applicable at the end of February.

The second parallel stems from the experience of Finland. After declaring independence in 1917, the country was opposing communists not only militarily, but politically, too. On the other side, the central government had to address the right-wing Lapua movement (as an extremist movement opposing communism). Finland criminalised the activities of communist parties and prosecuted their members. Lapua shared the same fate. Finland has preserved its independence and sovereignty and, perhaps even more remarkably, in the form of a democratic state.

The activities of Sinn Féin in Northern Ireland show the opposite approach to dealing with insurrectionary movements. The strategy involves forcing Sinn Féin, or at least its core members, to political debates instead of guerilla fighting. The context, though, resembles more closely the Herri Batasuna case in Spain than the Ukrainian scenario.

Professor Issacharoff goes further and concludes, ‘the question is not whether party prohibitions against insurrectionists are ever appropriate, but rather what constitutes (sufficient) evidence of anti-democratic intent and who is the ultimate arbiter of the prohibition.’ This is a question which has been on the minds of Ukrainian authorities since the Russian full-scale invasion on 24 February 2022.

What is Ahead for Ukraine?

The Ukrainian Constitution allows the banning of political parties only by judicial decision. Taking the troubling experience of banning the Communist Party of Ukraine, which lasted for about seven years (2015-2022), one may wonder how to speedily manage the present threats posed by the OPFL.

Back in August 1991, the Presidium of the Verkhovna Rada concluded that Kompartia of Ukraine (the old Communist Party of Ukraine) was involved in the GKChP during the August coup. The conclusions were reached by the special investigation commission mandated by the Presidium. The findings set out in the conclusions shed light on how Ukrainian communists had supported and enforced orders received from the illegitimate GKChP in Moscow. Thus, the Presidium decided to immediately ban the communists who attempted to seize power. Later, the ban was subject to heated discussions, even in the Constitutional Justice.

Now, the Rada has the same political responsibility as the Presidium before it to give a definitive response to the activities of the OPFL, which is acting in the interests of Russia. The defeat of Kompartia in 1991 was largely a political move as a response to the immense threat to the newly founded independent state. One should not simplify court deliberation over banning the disloyal parties, and they retain all procedural guarantees under the umbrella of the ECHR.

The difficulty lies in that disloyal parties usually act in a democratic manner, while their end political goal nevertheless lies outside of engagement with democracy. As Nancy Rosenblum brilliantly noted, ‘insurrectionary groups reject the democratic precondition that conflict is restricted to the regulated rivalry of obtaining political office and influencing laws and policy by peaceful, electoral means’. To establish the intent of that kind is a rather complex task for the Ministry of Justice and courts.

Now, the threat is even more pressing and immense than in 1991. The Rada shall take political steps and lay down conclusions about the role of pro-Russian parties in Ukraine. In so doing, it will fulfil its historic mission to dismantle Russian-backed insurrectionary parties, allowing them no chance to slip through the net in the Minoan Maze of the Ukrainian judiciary.

Published as part of our own Future of Ukraine Fellowship. Read more about the project here and consider contributing here.

Picture: Ukrainians paint billboards with Muraev paint/telegram channel of Serhiy Sternenko

Bohdan Bernatskyi

Future of Ukraine Fellow

Bohdan Bernatskyi is a Visegrad Insight Fellow as of 2022. He is also a Senior Lecturer in International Law at the National University of Kyiv-Mohyla Academy and Ostroh Academy. He is a legal practitioner and helps the Ukrainian government and Members of Parliament in the fields of sanctions and transitional justice reforms. His academic interests include human rights, functioning of political parties and countermeasures in international relations.

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