DENIAL OF AGGRESSION AGAINST UKRAINE OR OCCUPATION OF ITS TERRITORY: A NEW CASE AMONG THE DENIAL CRIMES

 Background: Denial crimes are considered one of the most controversial topics in modern criminal law. The criminalisation of historical negationism is problematically balanced between two extremes: the need to protect historical memory, public order and the feelings of victims of terrible tragedies and their descendants, and the need to safeguard freedom of expression and academic debate. Despite this tension, the criminalisation of denial crimes has been gaining momentum on the European continent and is constantly expanding. For a long time, Ukraine has remained on the sidelines of this complex debate on the prohibition of denials. However, Russian aggression prompted the Ukrainian parliament to criminalise the denial of the aggression against Ukraine and the occupation of its territory. The wording of the law is not trivial and differs from classic European models. Two laws were adopted simultaneously, but they were not synchronised with each other, creating a collision. Despite this, both are widely used. This article, therefore, demonstrates Ukraine's thorny path to criminalising denials and the legal difficulties that arose from the extreme conditions under which the laws were adopted.

Methods:
In the initial stages of the research process, the authors present a concise overview of the evolution of criminal prohibition of denial across the globe, focusing on recent trends. This is achieved through the application of historical and comparative legal methods. The central section of the study is devoted to an examination of the Ukrainian experience, comprising two parts. The first section elucidates the evolution of the concept of criminalisation of these actions in Ukraine through an analysis of legislative initiatives and the outcomes of their assessment. The second section is dedicated to investigating the shortcomings of the legislative process, the challenges encountered in the implementation of adopted amendments, and the formulation of recommendations for the resolution of collision between legal norms, as well as suggestions for improving existing regulatory frameworks. In this endeavour, the authors employ a combination of formal legal and logical methods of cognition.

Results and conclusions:
Europe is at the heart of the movement to criminalise historical negationism. Most European countries criminalise some form of denial. Ukraine, as a candidate country for accession to the European Union, must harmonise its legislation with EU law. Over the past two decades, numerous draft legislation proposals have been submitted to the Ukrainian parliament with the intention of criminalising the denial of specific historical facts and their legal assessment. However, the Ukrainian experience differs significantly from that of its European counterparts, which mainly focus on liabilities for denying the Holocaust, other genocides, crimes against humanity, and war crimes. At present, the criminal law of Ukraine provides for the denial of Russian aggression and occupation in two distinct articles of the Criminal Code of Ukraine. Both articles are applied in practice, resulting in legal uncertainty and a violation of the principle of equality. The article proposes an amendment to the Criminal Code of Ukraine to resolve this collision and, in the interim, to resolve the collision of norms by the principle of in dubio pro homine.

 Mykola Rubashchenko
Cand. of Legal Science (PhD in Law), Assoc. Prof. of Criminal Law Department, Yaroslav Mudryi National Law University, Kharkiv, Ukraine
m.a.rubaschenko@nlu.edu.ua
https://orcid.org/0000-0003-4969-8780

Corresponding author, responsible for conceptualization, methodology, writing – original draft, data collection and supervision.

Nadiia Shulzhenko
Cand. of Legal Science (PhD in Law), Assoc. Prof. of the Department of Criminal Law Policy and Criminal Law, Taras Shevchenko National University of Kyiv, Kyiv, Ukraine
nadiia.shulzhenko@knu.ua
https://orcid.org/0000-0002-9961-7574

Co-author, responsible for methodology, resources, writing – original draft and data collection for sections 1 and 5.

Competing interests: No competing interests were disclosed.

Disclaimer: The authors declare that their opinion and views expressed in this manuscript are free of any impact of any organizations.

Copyright: © 2024 Mykola Rubashchenko and Nadiia Shulzhenko. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.