Andrii Nekoliak analyses the recent Ukrainian Constitutional Court's decision on the ‘de-communization’ law
On July 16, 2019 Ukraine’s Constitutional Court handed down a decision on the constitutionality of the Law ‘On the Condemnation of the Communist and National Socialist (Nazi) Regimes, and Prohibition of Propaganda of their Symbols’. The Court confirmed the constitutionality of the Law and, by implication, the government’s policy of ‘de-communization’ launched in 2015. The decision warrants close attention for two reasons. First, it speaks to the phenomenon of the intersection between memory and law, which has become a research topic for scholars over the last couple of years. Second, from a legal theoretical point of view, it illuminates the lack of consideration regarding conceptual foundations for punishment and penal law in Ukrainian Court decisions.
In what follows, I argue that the Ukrainian Constitutional Court’s decision to uphold the de-communization law readily aligns with popular politics of history and historical narrative-making in the country. In particular, it speaks of the country’s ‘mnemonical security seeking’ approach to dealing with the past. At the same time, the Court missed an opportunity to thoroughly consider conceptual foundations for punishment when adjudicating on the issue of the law.
The De-Communization Laws of 2015
In 2015, Ukraine’s parliament voted for a group of laws intended to deal with Ukraine’s Soviet past. Among other things, measures were undertaken to open access to KGB archives and to memorialize Ukraine’s independence movement over the last century (the latter did not come without international controversy). The de-communization laws were meant to shift to a more Western-centered commemorative paradigm of World War II by distancing the country from Soviet notions and practices. In particular, one of the laws sought to legally equate the Soviet and Nazi totalitarian regimes with each other, proclaiming the criminal nature of both these regimes and prohibiting propaganda and the usage of their symbols in the country. In 2015, the task of distancing Ukraine from its Soviet past was perceived by many to be as important as fighting against corruption or undertaking structural reforms.
The Law condemning the Soviet and Nazi regimes amended the Criminal Code to allow for prosecution of production, dissemination and public use of symbols of the totalitarian regimes. For instance, public performance of the anthems of the USSR or the Ukrainian SSR constitutes a criminal offense in Ukraine punishable by restraint of liberty for a term of up to five years or imprisonment for the same term. The Law also defines what constitutes Soviet memorabilia and exempts from punishment academic and museum activities that involve using the symbols of the regime or keeping such symbols in private collections. Beyond the realm of criminal law, the Law states that propaganda of the totalitarian regimes is forbidden by legal entities or print media outlets in their activities and publishing. Non-compliance with the Law results in the annulment of governmental licenses and the ceasing of the activities of legal entities. Furthermore, in 2017, a group of parliamentarians who were critical of the new commemorative paradigm of disregarding the Soviet past in Ukraine, appealed to the Constitutional Court to review the constitutionality of the Law. In the view of the MPs, the new Law infringed on societal pluralism and, most importantly, on freedom of speech in light of the Constitution.
In its decision, the Court aligned with the government’s de-communization policy and supported the ban on propaganda and symbols of totalitarian regimes. From the outset of its decision, the Court focused on examining the legitimacy of the Law’s aims. In the view of the Court, this could only be done by evaluating the characteristics and consequences of the Soviet regime in Ukraine (p.3).
The Court’s narrative of Ukrainian history in the 20th century was expressed as follows. The Soviet (Russian) communist regime combated the nascent, Ukrainian nation-state and occupied the country’s territory between 1917-1922. The imposition of the Soviet regime on Ukrainian lands led to a one-party state, censorship, and the abolition of constitutional democracy in Ukraine. During 1920-1950, the Soviet regime persecuted, killed, and deported millions of people. In particular, the Holodomor famine of 1932-1933 in Ukraine profoundly devastated the country and led to loss of human life. Between 1941-1944, the communist regime was unable to organize the effective defense of Ukraine from the Nazi invasion. As a result, Ukraine was occupied by the inhumane Nazi regime that led to more ‘harsh infringements and repressive measures, including […] mass extra-judicial shootings’ (p. 7). According to the Court, both regimes were ‘identical’ in their essence and exercised ‘similar’ methods of repression (p. 8). In subsequent years, after the Nazis were defeated, the communist regime cracked down on attempts to consolidate an independent Ukrainian state by persecutions and political repression.
Finally, the Court stressed the particular danger of using communist (Soviet) symbols in modern-day Ukraine. In its view, these symbols were being actively used to delegitimize Ukrainian statehood by anti-Ukrainian forces. Most importantly, the Court considered that symbols of the Soviet past were closely associated with ongoing Russian aggression in the country. Having stressed the latter point, the Court proclaimed that using symbols from the Soviet past in modern-day Ukraine could be associated with ‘negative and destructive ideas’ that had deprived Ukrainians of an independent nation-state in 1917-1991 and sidelined Ukraine ‘at the outskirts of civilizational processes’ (p. 14).
There is no doubt that Stalinism brought profound devastation to the peoples of Eastern Europe. These historical experiences continue to shape public discourses of history in the countries of the region. Indeed, there may be good reasons for the state to take restrictive measures regarding the public display of contentious symbols. However, the question is whether it is the role of the Constitutional Court to consider historical interpretations of Ukraine’s past, or rather only to consider the legal and constitutional merits of the case before it.
The Court, Historical Narrative-Making, and The Law
The Court’s decision opens up a few important discussion points. Firstly, the Court engaged in the adjudication of historical interpretation rather than legal and constitutional matters. This is a peculiar role for a judicial institution empowered to undertake abstract constitutional review. The Constitutional justices engaged in the politics of history and historical narrative-making, often recycling popular polemic arguments in parts of their decision. Most notably, the decision proceeds from a teleological interpretation of Ukraine’s past, according to which the country’s history is a ‘quest’ for an independent nation-state and, therefore, the legitimacy of the state should be protected and cherished in modern-day Ukraine.
Secondly, the focus on the legitimacy of the Law’s aim led to important legal questions being unanswered in the decision. For instance, Article 3 of the Law stipulates that the central executive authority can rule political parties out of electoral process if their activities, name and/or symbols are not in compliance with the de-communization law[i]. In other words, the Law gave the executive branch an operative power to exempt political parties from participating in electoral processes by its administrative decision, without going into judicial processes for banning such a political party. It is important to stress that the Ukrainian Constitution allows for prohibiting associations of citizens but only through a judicial process (and not through administrative discretion of governmental agencies) and based on a defined list of reasons in Article 37 of the Constitution (e.g. spreading inter-ethnic or racial hatred, or an idea to overthrow the constitutional order). However, this question was not reviewed by the Court, which did not focus on separate provisions of the Law. Furthermore, the Court considered existing international legal practice on the usage of totalitarian symbols to be irrelevant in Ukraine’s case. In particular, the Court stated that the reasoning of the European Court of Human Rights (ECHR) in the case of Vajnai v. Hungary (2008) was not applicable as far as Ukraine’s experiences of the occupation of its territories and the permanent danger to its statehood. Thus, in the view of the Court, the ECHR’s case law on the matter was irrelevant to Ukraine.
Thirdly, rebutting the claim about infringement on freedom of expression, the Court stated that this freedom is not absolute and that there can be legitimate reasons to limit it (for instance, the need to preserve public order). This point appeared early in the first pages of the decision (p.3). Yet it seems that the Court came to its conclusion too quickly - the fact that freedom of expression can be regulated in general does not mean that it necessarily needs to be restricted in this or any other case. The Court proceeded from the presumption that the restrictive measures introduced by the parliament were proper in the first place. This point leads to some concluding thoughts.
Harm to Others as a Conceptual Paradigm for Grounding Law’s Restrictive Aims
The case of the de-communization law and the prohibition on the usage of totalitarian symbols is reminiscent of the importance of considering conceptual foundations for instituting restrictive measures or punishment by means of law. It brings to mind Harm to Others (1987), a classical piece of scholarship by Joel Feinberg. Feinberg endeavored to develop a framework regarding what warranted interference with individual liberty and, in particular, criminalization by elaborating on J. S. Mill’s original notion of the ‘harm principle’. In Feinberg’s view, before any criminalization occurs, the legislature should carefully delineate why contentious conduct requires interference with personal liberty and how such conduct falls into the domain of ‘harm to others’. In particular, Feinberg claimed that such abstract evaluation should rely on an ‘elaborate set of mediating maxims, interest-rankings, principles of justice, and the like’ (Feinberg, 1987: 37). The legislature is a site where such evaluation should happen in the first place. Additionally, judicial review provides a perfect place for analytical and thoughtful contestation of any restrictive or punitive measures introduced by law.
In order to strengthen its reasoning, rather than focusing on the criminality of totalitarian regimes, which resulted in the Court contributing to historical narrative-making and politics of history, Ukraine’s Constitutional Court should have considered what constituted the conceptual foundation for instituting restrictive or punitive action by means of the law.
Andrii Nekoliak is Doctoral Candidate in Political Science at the Johan Skytte Insitute of Political Studies, University of Tartu, Estonia.
[i] Paragraph 5, Article 3 of the Law establishes that "political parties, regional, city/town, district organizations or other structural units provided by the Articles of the political party, with respect to which the central executive authority responsible for implementation of the governmental policy on state registration of legal entities, registration (legalizing) of associations of citizens, non-governmental unions, other NGOs have made a decision, in accordance with the procedure established by the Cabinet of Ministers of Ukraine, that its activities, name and/or symbols are inconsistent with the Law may not be an electoral subject"