In mid-March 2022, Elena Fastunova, a chief legal counsel at the Obolon District Administration’s administrative services center in Kyiv, a Ukrainian citizen born in Novocherkassk, Russia, created a Facebook page under a pseudonym. On July 17th, her apartment was searched. The search resulted in the seizure of her mobile phone, the number of which was the only evidence linking the social media page to Elena. Without this proof, the case is baseless. However, the grounds for the search remain unclear. How did the SBU (Security Service of Ukraine) know Elena was behind the page before seizing her phone? The court was not presented with a protocol of covert investigative actions (NSRD) regarding the retrieval of private information from telecommunication systems, nor a court order authorizing this procedure. Elena was not detained after the search. On September 16th, the results of a psychological and linguistic examination were released, stating that Elena’s Facebook reposts harmed Ukraine’s information security.
On September 26th, Elena Fastunova was sent to pre-trial detention, charged under five articles of the Ukrainian Criminal Code: Part 2, Article 109 (calls for the overthrow of power); Part 2, Article 110 (calls for a change in territorial integrity); Part 1, Article 161 (incitement of national hatred); Part 1, Article 436-1 (dissemination of communist symbols); and Part 2, Article 436-2 (justification of Russian aggression). The most serious charge, Part 2, Article 110, carries a sentence of 5 to 10 years imprisonment with confiscation of property.
The verdict stated that Elena, at an unspecified time and place (how could the time of the reposts not be established?), posted messages in violation of Articles 65 and 68 of the Ukrainian Constitution. Article 68 is general and not directly relevant to the case; it states that everyone must abide by the Constitution and laws, and ignorance of the law is no excuse. Article 65, however, reads: “The defense of the Fatherland, independence, and territorial integrity of Ukraine, and respect for its state symbols are the duty of citizens of Ukraine. Citizens perform military service in accordance with the law.” This pertains to military conscription and army service, not a woman reposting on social media.
What exactly did Elena repost?
The charges under Article 109 (calls for the overthrow of power) relate to the following:
“Ukrainian Nazism must be destroyed, and Ukrainian Nazis exterminated… People need a clear direction – where we are going. We need to tell them that they are our people, that we will build our happy future together. Then the battle for minds will be won”;
“For decades of rudeness and insults, black ingratitude for good neighborliness… for the endless killings, torture, shelling, and destruction in Donbas – for all this, retribution finally catches up with them. Not revenge, but retribution! And this is only the beginning. I hope all the scum will answer. Regardless of military subordination. The ‘Svidomi’ [patriotic Ukrainians] must completely vomit up the system of lies, crimes, fabrications, and treachery they have built”;
“You can watch this forever. In Kherson, the Ukrainian coat of arms was dismantled on the Alley of Heroes. Keep it up. Glory to Russia!”
These comments clearly lack calls to action. The imperative “must be destroyed” is not a call to action due to the lack of a specific addressee. Reasoning about retribution and expressing positive emotions about the dismantling of the Ukrainian coat of arms are also not calls to action, especially not to overthrow the government. Her statements can be morally condemned, for example, from the standpoint of Ukrainian patriotism, but are unlikely to be subject to criminal prosecution in a democratic society. In other words, these reposts objectively lack the elements of a crime under Article 109 of the Criminal Code. Not to mention that the logic connecting the statement about the need to destroy “Ukrainian Nazism” with the overthrow of the current government can be interpreted as the SBU and the Prosecutor’s Office considering the current Ukrainian authorities to be Nazi.
The charges under Article 110 of the Criminal Code (calls for a change in territorial integrity) relate to the following:
“Eight years after their feat, the legendary 300 Zaporozhians are returning home. Today marks exactly 8 years since Zaporizhzhia entered the glorious history not only of Novorossiya, but of the whole world. April 13, 2014, 300 unarmed Zaporozhians…. We are Russians, God is with us! Demilitarization and denazification must be carried out to the end throughout the post-Ukrainian space!”
Firstly, for a call to change territorial integrity to be qualified under this article, it must be committed in violation of the Constitution, specifically a particular article thereof. This is stated in the Criminal Code; changes to territorial integrity can be legal. The prosecution did not specify which articles of the Constitution were violated by this repost, and without this, there is no crime. Furthermore, it is unclear what in Elena’s statement can be construed as a call to change territorial integrity. The text contains a call for “demilitarization and denazification,” but not for the secession of any territories from Ukraine.
The charges under Article 161 of the Criminal Code (incitement of national hatred) relate to a number of reposts, so we will cite one that encapsulates the general meaning of the others:
“A German journalist is surprised that complaints from local residents are only about Ukrainian, not Russian, soldiers. “I questioned people about the behavior of Russian and Ukrainian soldiers and was surprised that only Ukrainians engaged in looting, especially before retreating. Everyone noted that the Russians behaved correctly, tried to help, and even shared medicines whenever possible. No specific complaints about Russian soldiers were received. But about Ukrainians – yes, that they shot at civilians, looted, and so on. I expected that there would be at least some complaints about the Russians, but I was wrong. Amazing!”
However, the following quote should also be mentioned: “According to the old Russian tradition in antiquity, if there was chaos in Kyiv, the Novgorodians would come, restore order, install a different prince, and go home.”
Whether the above statements incite national hatred is for you to judge.
The charges under Article 436-1 of the Criminal Code (dissemination of communist symbols) relate to: a repost of a video showing the Victory Banner of the USSR over Nazi Germany, and an image of another symbol of victory over Nazism – the St. George Ribbon. The irony is that the court itself dismissed the first instance, as the St. George Ribbon is not included in the Ukrainian list of communist symbols, and its dissemination only leads to administrative, not criminal, liability. Why the SBU and the Prosecutor’s Office included the St. George Ribbon in the indictment as evidence of a criminal offense, knowing that it was not, is unknown.
The reposts relating to Article 436-2 of the Criminal Code (justification of Russian aggression) must also be selectively cited, as there are many:
- “Eastern European countries are bringing about their own complete destruction. The Baltics and Poland have only themselves to blame. We cannot allow strikes to be launched from their territory.”
- “They’ve insulted us in every possible way. Called us every name – ‘rashists’, ‘vatniks’, ‘orcs’. We would have kept enduring it, but everything in the universe has its limits, and we’re tired of tolerating this.”
- “To those whining that ‘we struck first unnecessarily’, let me remind you: last time we were second (06/22/1941), it cost us 27 million lives and 4 years of nightmare on our soil. Later, historian-politologists criticized Stalin for ignoring intelligence reports. Putin did absolutely the right thing!”
Some of the selected reposts might formally relate to the essence of the accusation of “justifying Russian aggression,” but this is perhaps the only point of agreement. Elena Fastunova admitted in court that she made these reposts but does not believe she violated the law. At the time, she naively believed she “had the right to freely express her thoughts.”
Ultimately, for the less serious charges (all except Article 110 of the Criminal Code), on September 6, 2022, the court sentenced her to one to two years. For Article 110 of the Criminal Code, she received a five-year sentence with confiscation of property, excluding her personal dwelling, which was deemed “necessary for the rehabilitation of the accused.”
This translation was made using a neural network. If you find any inaccuracies, please contact us.
