Last month, two significant events related to the de-communisation laws happened in Ukraine. Both of them are very telling. First, on the 4th of May, the Halytsky District Court of Lviv passed its first sentence based on the renewed Article 436-1 of the Criminal Code, regarding “production, distribution of communist, Nazi symbols and propaganda of communist and national-socialist (Nazi) totalitarian regimes.” The young man accused of posting prohibited content on Facebook pleaded guilty, and as a result of the plea he “got away” with only two and a half years on probation.
The second event was the scandal centred on the column written by the director of the Ukrainian Jewish Committee, Eduard Dolynsky, in which he called for prosecution, according to the abovementioned Criminal Code article, of the organizers of the march dedicated to the 74th anniversary of the SS Galicia division. In his reply to Dolynsky, Volodymyr Viatrovych, the director of the Ukrainian Institute of National Memory, said that he did not see anything illegal in the actions of the organizers of the march or the symbols used. And although these two events are not directly connected, they both provide perfect illustrations of the content and application of the Ukrainian “de-communisation” laws, as well as of the social changes that have happened in the last few years.
It is worth noting that the Article 436-1 of the Ukrainian Criminal Code existed before, but it only concerned National Socialism and fascism. However the Law “on condemning the communist and the National Socialist (Nazi) totalitarian regimes in Ukraine and the prohibition of their symbols,” passed in the summer of 2015, has fundamentally changed this article. Not only did this law add passages about the prohibition of communist symbols, it also made the passages about the Nazi regime miraculously disappear. The new edition does not mention the “public denial or justification of the crimes of fascism,” particularly of “the crimes committed by the Waffen SS organization and its subordinate structures, by those who fought against the anti-Hitler coalition and collaborated with fascist occupants.” According to the old law, the organizers and the participants of the march dedicated to the SS Halychyna division would clearly be committing a crime. But not according to the new one.
A simple comparison of the law dedicated to communism and National Socialism makes it clear whom the law targets.
And now it turns out that Volodymyr Viatrovych is absolutely right. When, in his replies to official requests and in his public statements, he denies that there were any violations of Ukrainian law, in which the symbols of the Waffen SS and SS Galicia in particular are not prohibited, he is actually right. You will not find any mention of these organizations in the law. Neither does it mention any SS symbols at all. It barely mentions anything. In the section on the prohibition of National Socialist symbols, the only symbols that are explicitly prohibited are the flag and the coat of arms of Nazi Germany in 1939-45, as well as the symbols of the National Socialist Party and quotes by the party leaders. And that’s basically it. No “…or its elements,” no “and other symbols,” like in the case of the communist symbols. Not a word about the symbols of the countries allied with Germany, such as fascist Italy. Even a simple comparison of the number of paragraphs in the text of the law dedicated to communism and National Socialism makes it clear whom this document targets and why, for example, a Facebook post ends up outside the law, while a march celebrating the SS militants is a totally legal event.
On Wikipedia, you may find Nazi symbols which Ukrainians can use in their everyday lives without fear of prosecution. Some of them look very familiar, don’t they?
No wonder such laws were met with many objections in the Venice Commission. While it generally recognises the right of any country to prohibit certain symbols, it still pointed out that the wording of the article is too vague; the list of prohibited symbols is not exhaustive, which makes it open to interpretation; the law allows the prohibition of certain political parties solely for their name and not for their criminal activities proven in court; and so on. In addition, violations of the prohibition, according to the law, entail unjustifiably serious punishment, comparable to punishments for such felonies as murder or rape: imprisonment of up to 5 years with possible confiscation of property.
However, everybody knows that in Ukraine, the law is not as important as its enforcement, and the strictness of law is often mitigated by its optionality. For example, marches dedicated to the SS Galicia division were organized even before the new version of the Criminal Code was adopted, and there are streets named after the division in Ivano-Frankivsk and Ternopil (although the municipalities decided not to include the unpleasant letters “SS” and named the streets simply after the “Galicia division”). Law enforcement officers also do not mind the numerous groups and users on social media whose profiles are full of clearly Nazi content; they do not mind the use of the Nazi salute at political demonstrations or the symbols of certain volunteer battalions. [The author hints here at the symbol of the Azov battalion, which is a stylized version of the Nazi symbol Wolfsangel. — Transl.] Moreover street violence by the far right has practically never been investigated as hate crimes, if ever investigated at all. Everybody expected that the law enforcement would treat the “violators on the left” in the same way. However, what is important in this story is exactly this: it is a warning to all those who share left-wing views that, from now on, you can actually get punished for this.
Are we heading towards a situation where you will only be allowed to carry a limited amount of “dangerous” literature with you?
We can find examples of questionable law enforcement practices even here, in the very first case. Evidence in a case about the distribution of communist ideology on the internet was, surprisingly, represented by offline material objects, such as ribbons, flags, raincoats, hats or even the book Capital by Karl Marx, which was called a “textbook” in the court. The convict kept these things at home, and he neither manufactured nor distributed them. As it turns out, not only production and distribution of prohibited symbols, but even storage of them for personal use are now de facto criminalized. To make an analogy, are we heading towards a situation where you will only be allowed to carry a limited amount of “dangerous” literature with you? And if, when you’re arrested, you will possess slightly less copies than necessary to be charged with a crime, cops will gladly add some more Lenin’s brochures into your pockets.
The sentence based on the de-communisation can become a model. Not only is it the first move in the fight against communism, it is also the first example of political censorship on the internet. Only a couple of weeks have passed since this court hearing and the day when the President signed the decision to block Russian websites. The next step — a law on government regulation of the internet, which, according to experts, is nearly identical to its famous Russian counterpart — is said to be presented to the world by this summer.
The Ukrainian government has once already tried to introduce censorship and limit access to certain websites. Back then, in January 2014, this initiative of the Yanukovych regime was perceived as a threat to the freedom of speech and nicknamed “the January 16 dictatorship laws.” Today, in contrast, the government presents similar laws as a defence against the enemy in a hybrid war and as a triumph of historical justice, demonstrating its remarkable capability of maintaining double standards. Double standards, as the recent “de-communisation” case demonstrates, also permeate the judicial and law enforcement systems — with a strong tilt to the right. And the society even greets it with applause.