SUBSTITUTION IN CRIMES AGAINST THE FOUNDATIONS OF NATIONAL SECURITY OF UKRAINE: COLLABORATIONISM OR AIDING THE ENEMY?

Author: Markian Vysotskyi, Attorney, Counsel at Grain Law Firm

The concepts of “collaborative activity” and “aiding and abetting the aggressor state” were introduced into the Criminal Code of Ukraine following the onset of the full-scale armed aggression of the Russian Federation against Ukraine in 2022. These provisions establish liability for various forms of assistance to the aggressor state and occupation authorities through the criminalisation of relevant conduct.

These legislative novelties were driven by the fact that Ukrainian law previously did not encompass all possible forms and modalities of cooperation with the authorities of an aggressor state, including those operating in temporarily occupied territories.

Thus, Article 111-1 of the Criminal Code of Ukraine contains seven separate offences and one additional composition. In particular, Part 4 of this Article provides for criminal liability for economic cooperation in the form of transferring material resources to illegal armed or paramilitary formations created in the temporarily occupied territory and/or to armed or paramilitary formations of the aggressor state, and/or conducting economic activity in cooperation with the aggressor state or illegal authorities established in the temporarily occupied territory, including the occupation administration of the aggressor state. The offence under Part 4 of Article 111-1 is classified as a non-grave crime.

By contrast, Article 111-2 of the Criminal Code of Ukraine establishes liability for intentional acts aimed at assisting the aggressor state (aiding and abetting), its armed formations and/or occupation administration, committed by a citizen of Ukraine, a foreign national, or a stateless person (excluding citizens of the aggressor state), with the intent to cause harm to Ukraine. Such acts include the implementation or support of decisions and/or actions of the aggressor state, its armed formations and/or occupation administration, as well as the voluntary collection, preparation, and/or transfer of material resources or other assets to representatives of the aggressor state, its armed formations and/or occupation administration. This offence is classified as a particularly grave crime.

Legislative overlap and lack of coherence

It is evident that the inclusion of Articles 111-1 and 111-2 into the Criminal Code of Ukraine was carried out without sufficient coordination or clear delimitation — either between these provisions themselves or in relation to other criminal-law norms that may also cover cooperation with an aggressor state.

Moreover, these provisions differ significantly in their legislative drafting technique, which further complicates their distinction in practice.

In particular, the wording of Article 111-2 is overly broad and encompasses all actions aimed at supporting (aiding and abetting) the aggressor state through the implementation or endorsement of its decisions and/or actions. As a result, a wide range of conduct, including activities in temporarily occupied territories, may fall under this qualification.

At the same time, Article 111-1 contains a detailed list of forms of collaborationist activity, including public support for the aggressor state, holding managerial positions in occupation administrations, voluntary election to illegal authorities, participation in organising or conducting illegal elections, implementation of the aggressor state’s educational standards, transfer of material resources to illegal armed formations, and conducting economic activity in cooperation with the aggressor state or occupation authorities.

Due to this structure, conduct that constitutes “aiding and abetting” may simultaneously fall under the scope of Article 111-1. In practice, this often results in substitution between Part 4 of Article 111-1 and Article 111-2, as both may cover the transfer of material resources or economic interaction with the aggressor state.

Legal uncertainty and interpretative challenges

Accordingly, the introduction of Articles 111-1 and 111-2 has created significant challenges in their practical differentiation, qualification of conduct, and sentencing, due to the absence of uniform interpretation of identical or similar legal concepts, despite their different levels of severity and sanctions.

The Criminal Code of Ukraine does not define key terms such as “material resources,” “assets,” “transfer,” “benefit,” “economic activity,” “representative of the aggressor state,” or “harm to Ukraine.” These terms are often interpreted inconsistently by law enforcement authorities and courts.

The absence of statutory definitions complicates the distinction between offences under Articles 111-1 and 111-2, particularly given that the objective elements of these crimes — such as transferring material resources to occupation authorities or armed formations—are criminalised under both provisions.

As a result, similar factual circumstances are frequently qualified differently across criminal proceedings.

Legal scholars generally interpret the term “aggressor state” as a state that uses armed force against the sovereignty, territorial integrity, or political independence of another state. In the context of Article 111-2, this refers specifically to the state that has committed aggression against Ukraine.

Consequently, a “representative of the aggressor state” should be understood as a person vested with authority to represent the state in relations with others, i.e. a bearer of public authority exercising state functions. Under Article 111-2, this excludes private legal entities (such as companies or corporations) incorporated under the law of the aggressor state, as they do not exercise public authority or state functions.

Subject matter of the offence under Article 111-2

In cases of qualification under Article 111-2, the existence of a specific subject matter of the offence — namely material resources or assets — is mandatory.

The transfer of material assets becomes socially dangerous only if two cumulative conditions are met:
(1) the assets are transferred to representatives of the aggressor state, its armed formations, or occupation authorities; and
(2) the act is committed with direct intent to cause harm to Ukraine.

The Criminal Code does not define “material resources.” However, in other legislative acts, this concept is generally understood as tangible objects or values in production, created or acquired and held at a person’s disposal. “Assets” may include funds (cash or bank deposits), other property, property rights, intangible assets, cryptocurrency, as well as works and services.

At the same time, Article 111-2 refers to the transfer of resources not necessarily in the direct possession of the offender, whereas Part 4 of Article 111-1 concerns the transfer of material resources obtained and possessed in the course of economic activity.

Systemic inconsistency and consequences for legal practice

The lack of clear statutory definitions for key terms forming the objective elements of Articles 111-1 and 111-2 leads to inconsistent interpretation and divergent case law.

To improve legal certainty and ensure uniform judicial practice, it is necessary to supplement the Criminal Code of Ukraine with provisions clarifying the meaning of core concepts, including “transfer of material resources,” “benefit,” “representative of the aggressor state,” and “harm to Ukraine,” among others. Such amendments should also ensure harmonisation with related legislation, including the Laws of Ukraine “On National Security of Ukraine” and “On Defence of Ukraine.”

Despite more than ten draft laws submitted since spring 2022 and considered by the Verkhovna Rada Committee on Law Enforcement, none has been adopted, including Draft Law No. 11525 of 28 August 2024, which remains unconsidered despite being included in the parliamentary agenda in early 2025.

Conclusion

The ambiguity in the interpretation of terms contained in Articles 111-1 and 111-2 of the Criminal Code of Ukraine significantly undermines their effectiveness as instruments for preventing collaborationist activity and aiding the aggressor state, and prevents the formation of a coherent and uniform judicial practice.

As a result, similar conduct may be qualified differently across criminal proceedings, leading to disproportionate sentencing and inconsistent standards of proof.

Ultimately, the application of these provisions in practice regrettably reflects the adage that “the law is like a wagon shaft — wherever you turn it, there it goes.”