Why protect police officers from insults in wartime in Ukraine?

On May 3rd, 2022 the Parliament approved in the first reading the bill 5050-1 on the protection of honor and dignity of the law enforcement officers. It is considered in the fast-track procedure according to martial law, although it is unrelated to it. There are no logical arguments for this bill to be considered in such a procedure. Nevertheless, the second reading is happening soon, it’s planned for the coming weeks in May. After that, the bill should be approved by the President, although he can veto the bill and send it back to the Parliament.

The bill introduces two completely new administrative offenses. 

Namely:

Paragraph 3, Article 185 of the Code of Ukraine on Administrative Offenses in the wording:

“Public offense of the police officer in the course of duty or the member of the civic organization for the protection of public order and state borders, the member of the military regarding their involvement in enforcing public order.”

Paragraph 3, Article 185-10 of the Code of Ukraine on Administrative Offenses in the wording:

“Public offense of the member of the military, State Border Guard Service of Ukraine border guard in the course of duty concerning protecting the state borders, sovereign rights of Ukraine within its exclusive economic zone or enacting border control at the checkpoints at the Ukrainian state borders or entry/exit checkpoints, or the member of the civic organization for the protection of public order and state borders in the course of duty concerning protecting the state borders.”

Thus introducing liability for the public insult of police officers, military personnel, and border guards. 

The term “insult” isn’t clearly identified in the bill and also lacks the denomination in the Ukrainian legal system. This presents additional problems with enacting such liability. 

The bill introduces the possibility of a range of serious human rights violations. 

In particular, anyone who writes about or publicly discusses the work of police, military or border guards can face the problems. It concerns any public statements: in mass media, on social networks, comments on the internet, speeches at rallies, conferences, etc. Any comments made by everyday citizens of course come within the scope of the bill. 

The insult itself is a problematic offense, as in practice what exactly is considered insulting is decided by the addressee. Simultaneously, the administrative procedure is quite simplified compared to the criminal one and is usually done without any evidentiary analysis. Therefore, in practice, all that is needed is the proof of the statement and the claim that the law enforcement officer considers it insulting. Any critical, ironic, satirical and other negative statements can be considered as such. Also, it can be used as means of revenge when the fact of the statement is proved by witnesses, for example, other police officers. And we are afraid that the bill will become a cause for prosecution of journalists and activists for critical public statements even when they are substantiated and backed up by facts because any negative statement can be considered offensive. 

It’s important to note that particular harsh insults of police officers, for example using profanity, could well be considered hooliganism. So one cannot claim that the honor and dignity of police officers are completely unprotected. 

Ukraine had a criminal liability for the insult in the Soviet times. It took activists many years to repeal it because it was persistently used as a punishment for the criticism from journalists and activists. As the result, in the new Penal Code of 2001 liability for the insult was removed. Nevertheless, in the explanatory letter to the bill 5050-1, its authors claim that this liability was “lost”. Which does not reflect the reality because it was repealed intentionally to decriminalize “insult” because it infringed European norms of free speech. Nowadays, in Ukrainian legislation exists only liability for the contempt of court.

It’s worth noting that in the EU, criminal liability for the insult is almost nonexistent. Administrative one exists regarding certain groups, but it for the most part has different wording or definition, and its implementation does not solely depend on whether the addressee considers the statement offensive.  

Additionally, the new bill allows police officers and border guards to detain a person for up to three hours to complete an administrative offense report and take the person to the police station. It creates the possibility to pressure journalists and activists during the detainment and at the police station. In practice, such offense as an insult becomes a perfect reason for police to detain any person any time they need to. 

The bill proposes the penalty for the insult in the form of:

• a fine ranging from 1700 to 5100 UAH (approximately from 50 to 150 euro), for the insult of the border guard ranging from 3400 to 6800 UAH (approximately from 100 to 200 euro) 
• compulsory community service from 20 to 30 hours.

The penalty isn’t that dire, and it’s a good thing, but with an ability to detain a person and subjective criteria for liability it can become a ground for more human rights violations.

The aforementioned bill is worth the attention exactly because it creates a precedent for the liability for the insult, and we fear that the scope of such liability will only grow. During the last few years, there have been many attempts to introduce the liability for the insult and all of them failed. And it seems that’s exactly why this bill is introduced during the time of war, when the public attention is focused on the country’s defense.

Volodymyr Yavorsky, member of the expert board of the Center for Civil Liberties.

Translation — Inna Makohonova. 

Source: ZMINA