Does staying behind mean collaboration with occupiers?

Translated by Dmitry LYTOV and Mike LYTOV. Original version is here

We also asked experts to explain where the line between survival, professional duty and collaboration in the occupied territories lies and why it is more difficult to draw the line in real life than on paper. Meanwhile, cooperation with the Russian occupiers, in accordance with Part 6 of Article 111-1 of the Criminal Code of Ukraine, is punishable by imprisonment for 10 to 15 years.

Social networks and media often advise what not to do to those living under Russian occupation in Ukraine. However, there is little information on how people can survive in the circumstances of Russia’s occupation.

Two thousand hryvnias for enhanced service

From the first day of the war, Andriy Smirnov (name and surname changed) and his colleagues were on intensive duty, day after day (the regular schedule is one day after three). Each shift brought a lot of stress with it.

"We were constantly being visited by soldiers with weapons, we knew they had our personal information and phone numbers," he said. “It was also annoying that the occupiers took the TV tower near the fire department and monitored everything that happened on the territory of the rescue department from there, with machine guns pointed at us.”

"One night they ran to the fire station, called the chief, put a gun to him and ordered him to show the whole station," says the man. “They were under the impression that a suspicious car drove into our territory. The conditions in which we found ourselves required a great deal of willpower to get by, we hardly slept and never knew what to expect: the management was talking about something, while the staff could only guess what was happening.”

At the end of March, the leadership of Berdiansk station announced that those not willing to work with the occupiers should either resign or leave the city, where another job would be provided to them. They were only given a day to leave.

“That morning, when the "Russian warship" was burning in the port of Berdiansk (March 24), officers of the Emergency Service and their families left for Ukraine-controlled Zaporizhzhia,” recalls Andriy. “A few hours later there was a fire on the second floor of a nine-story building. Those who remained in the city were faced with a choice: ignore the fire or prevent it from engulfing the upper floors. I was among those who chose to help people. Since then, colleagues from the region considered us traitors.”

According to Andriy, many of his colleagues had good reasons to stay in the occupied city.

“I have an old mother with sore feet who can hardly walk, and I am her only child,” he explains. “She needs medicine, which are no longer available in Berdiansk pharmacies, she needs food that Ukrainian pensioners cannot buy on a regular pension as prices have skyrocketed during the occupation. I sent my wife and children to free Ukrainian territory, and I stayed behind to take care of my mother and mother-in-law, as well as to guard our apartment – there are already known cases when occupiers squatted in empty houses and apartments, and looting thrives. And, of course, I still do my job.”

In the days following the departure of the leadership, the Berdiansk fire and rescue unit faced an acute shortage of workers. Those who stayed all April worked every second day, trained firefighters, and called retirees back into service. During the occupation, the Berdiansk station was headed by Anatoliy Psyol, a pensioner of the State Emergency Service.

It was agreed upon with the occupiers that the firefighters would volunteer and address only "peaceful" emergencies (they would not go to military facilities).

“In late April, we were supposed to receive a salary, but instead we only received 2 thousand hryvnias (approximately 65 USD) on our cards,” says Andriy. “We learned from our colleagues in the neighboring occupied cities that they received full salaries. So what is wrong with Berdiansk? Many people perceived it as if the regional leadership had sold us to the occupiers.”

In late May, Berdiansk firefighters did not receive salaries from Ukraine.

According to Andriy, due to the constant stress, his colleagues started developing health problems, and many had increased blood pressure. Tensions were only heightened by the fact that in May the Russian occupiers took one of them to the detention facility for having telephone conversations with the regional leadership (because of this, everyone realized that the firefighters’ conversations were being wiretapped). The prisoner was held in captivity for a long time, tortured, and his car was taken away.

Currently, Berdiansk firefighters do not work in military facilities and wear Ukrainian uniforms, although the Russian flag is already hanging on their station. However, they do not understand how they can do their job without getting paid for it.

"Forced to decide by early June"

The official school year in Berdiansk ended on May 2. Teachers who are currently on vacation have until June 3 to decide if they will continue working in the occupied city.

Natalia Stepanova (name and surname changed) has been working at school as a teacher for the past 20 years. She achieved some success in her career and cannot imagine herself in any other field.

“There are two options: either write a statement and agree to cooperate, or go underground – if you do not work, Ukraine promises to pay 2/3 of a salary,” she says. “Those who will cooperate must teach according to the Russian program from September 1. It is a pity that the entire city’s education department is now cooperating with the occupiers. I left the city to avoid the situation of duress. It’s a very fine line to tread: one wrong step – and you're labelled a collaborator.”

Today there are two leaders in the city’s department of education: from the occupiers, Halyna Shadurina, and from Berdiansk, pro-Ukrainian Tetiana Furmanova, who moved to Zaporizhzhia and supports the educators from there.

“All our hope rests on her,“ says Natalia. “We follow her orders (we often hear about them from Telegram) and thanks to them we still receive a salary. If we continue to receive even 2/3 of it, it would be inappropriate to talk about struggling to feed my family (which is what everyone is talking about now). All these months we received a salary, even those who left or did not go to work. I don't know if this money will be enough. But some things are more important than money.”

Shadurina said that those who did not agree to cooperate with the occupiers would be dismissed. And educators and nannies in kindergartens seem to be forced to decide and go to work.

Thus, for the teachers from the occupied cities, the summer vacation of 2022 is a time of hoping for the liberation of territories and the opportunity to return to school and teach children according to the Ukrainian program.

"They do not interfere with our work but demand to surrender employment record books"

Further employment of Maria and her medical colleagues no longer depends on the effective performance of their duties but on the decision of whether or not to cooperate with the new “authorities”.

Maria Spirina is a midwife-gynecologist at the Berdiansk maternity hospital. Together with other doctors, she receives pregnant women and women in labor not only from Berdiansk and nearby villages, but also from Mariupol and the south of the Donetsk region, Rozivskyi district, and the city of Polohy. In the first days of the war, during air raids, doctors took babies and went down to the basement with their mothers and pregnant women. After major surgeries, some doctors remained close to the patients in the corridors between the load-bearing walls.

During the war she has also taken on the duty of a psychologist: she talks a lot with patients, reassures them, and consults pregnant women by phone.

“In the first few days there was a lot of shock and fear, many tried to leave,” Maria remembers. “Of the original six doctors in the maternity ward, only two remain. Then within a week, the staff was refilled (invited specialists from other departments), and the maternity hospital began to work normally. The same situation happened with the anesthesiologists and pediatricians. At first, there was a shortage of medicine, but then humanitarian aid began to arrive from unoccupied territories of Ukraine, and the medicine necessary for the operation of the surgical hospital and maternity hospital arrived. Now we can provide assistance around the clock and in full.”

In mid-April, a new pro-Russian chief physician, Sergei Prokhorov, was appointed in Berdiansk, while the HR manager and the chief accountant resigned. The new occupation authorities decided to merge the primary medical unit with the secondary one (i.e., the city hospital with the clinical service), as well as to add a tuberculosis dispensary, a psychoneurological dispensary and an ambulance service. But so far these changes are only "on paper".

"The old bank accounts and seals are still there," says Maria. “The occupiers do not interfere with our duties, but they demanded that we hand in our work record books – probably to make us agree to work in a new medical institution. We have to decide by June 1, then they will prepare a new staffing schedule before mid-June. Our current contract with the National Health Service has not been terminated, and we continue to receive a full salary and medical supplies. But if the occupiers liquidate the BTMO (KP "Berdiansk Territorial Medical Association" – ed.), we do not know what will happen next.

The further work of Maria and her colleagues depends on the decision to cooperate with the new “authorities”.

“And here the question arises: who is the bigger traitor – the one who left, or the one who stayed to save our citizens?” she says. “The number of births in our city has not decreased. At the beginning of the war, I, like other medics, had no moral right to abandon people during air raids. Now many of the employees will remain because it is naive to wait and hope that Ukraine will provide equivalent work and free housing in another area. Additionally, many people here have sick relatives (mothers, fathers, grandmothers, grandfathers), who are difficult to leave behind and impossible to take with them. These employees will keep working under any authority.”

She does not consider people who help residents of her city as criminals.

“If nobody drives minibuses, if sellers do not trade, if entrepreneurs do not supply goods, life will stop. And someone has to clean the streets and extinguish fires – the city must continue to function,” she said.

According to our sources, the workers of the municipal culture department had to decide on their stance by the end of May. Other residents, who now have neither jobs nor money, do not know whether it is possible to agree to work in order to survive in the occupation. As a result, thousands of people are currently facing a difficult moral and financial situation. Collaborator or patriot?

Article 111-1 of the Criminal Code of Ukraine defines collaborative activity as a public denial by a citizen of Ukraine of armed aggression against Ukraine, as well as public calls to support the decision of the aggressor state, to cooperate with it, not to recognize the state sovereignty of Ukraine in the temporarily occupied territories of Ukraine.

The line between a patriot who did not leave his city in difficult times and a collaborator when one is forced to work in the occupied zone is very thin. Doctors, firefighters, teachers, public utilities agents, and local businesses are curious to know: are they traitors if they stay at home and serve their compatriots?

TEXTY asked experts about it.

Serhiy Danylov: "Performance of official duties is not collaboration"

According to Serhiy Danylov, a political scientist and expert at the Center for Middle East Studies, collaborative activities should be viewed from two perspectives: not only the legal but the public one, based on people's perceptions.

“In the public view, collaborators are those who cooperate with the FSB, those who report anti-terrorist operation participants and activists,” he explains. "People of this type are more likely to betray those they have a grudge with, to resolve their own disputes and take revenge in this way." Also, traitors are those who "showed up" in the occupation authorities’ ranks. That is, there are two categories of undisputed collaborators: the first – the "snitches", and the second – those working in positions of power on behalf of the aggressor-occupier. People also consider collaborators to be those who take part in propaganda campaigns (for example, on Victory Day) and who maintain informal and friendly relations with the Russian military. But if a person is not in a fraternal relationship with the occupiers and performs their direct duties for the benefit of the city, it is not collaboration.

According to Danylov, the Parliament of Ukraine is currently considering a bill on collaboration, but if it is adopted in its current form, staying innocent will be really difficult.

“We need to take into account the real situation,” said the expert. “There is a very fine line between ensuring loyalty, supporting "our people" and understanding the situation in the occupied territories.”

Hanna Lysenko: "Activities related to cooperation or support of the occupiers may be seen as collaborative"

According to Hanna Lysenko, a labor lawyer and a member of the Labor Law Committee of the National Bar Association of Ukraine (NAAU), the following activities of employees are to be considered collaboration with the enemy:

• transfer of material resources to the occupiers,

• conducting economic activities in cooperation with the aggressor state, illegal authorities established in the temporarily occupied territory, in particular the occupation administration of the aggressor state,

• voluntarily occupying a position related to the performance of organizational or administrative functions in the illegal authorities of the occupiers,

• participation in the organization and conduct of illegal elections or referendums,

• organization and holding of events of a political nature, implementation of information activities aimed at supporting the aggressor state, active participation in such events,

• voluntary employment in illegal judicial or law enforcement agencies created by the occupiers. In other words, any activity of workers related to the cooperation or support of the occupiers can be counted as collaborative and will be punished by imprisonment.
For example, a collaborator can be:

• a teacher who agrees to work according to the Russian curriculum from September 1,

• a doctor who will work in a new medical body created by the occupiers,

• a firefighter, public utility worker, policeman, medic and any other worker who receives a salary from the occupiers,

• civil servants who work in an organization newly created by the occupiers,

• an entrepreneur who enters a contract to organize festivities for the holiday season with an illegal “authority” created by the occupiers.

Serhiy Zayets: "For those who stay behind, life goes on too"

Lawyer Serhiy Zayets has been working on the problem of human rights violations due to the occupation of Crimea for eight years. He has been also cooperating with the Institute for Regional Press Development for several years. He knows firsthand what problems the inhabitants of the occupied territories face.

"Not everyone can leave the occupied territories, and for those who remain, life goes on," he said. “Some stay to care for sick relatives, others simply have nowhere to go, no transport to move, or no money to settle in a new place; some simply do not have the courage to leave the familiar situation and plunge into the unknown, and some missed the right time to leave before the Russians prohibited it.”

There are also cases when, despite mass support from the state and volunteers, displaced persons are not always hospitably received in other communities. Such a negative experience also influences the decision to leave.

A similar case has already been heard by the European Court of Human Rights (Demopoulos and Others v. Turkey, 01/03/2010).

“The so-called Turkish Republic of Northern Cyprus (TRPK) is an occupied territory, similar to Transnistria, Abkhazia, South Ossetia, etc. and does not have the status of an independent state,” says Zayets. “However, in one of the Cypriot cases, the European Court of Human Rights stressed that time does not stop in the occupied territories, migration takes place, people are born, they die and inherit property, so neither a legal nor an economic vacuum is possible. This means that people who remain in the occupied territories cannot postpone the birth or upbringing of children indefinitely or exist without food, medical care, and so on. Those who were able to leave – left, and those who could not – stayed, and they need to continue to live – usually in a modern city or other settlement. This situation also requires people to organize themselves, otherwise, the community will plunge into the Dark Ages very quickly: with epidemics, unsanitary conditions, lack of fire safety, illiteracy, and so on. There are things that cannot be neglected.

The temptation to be guided by a radical "revolutionary consciousness" and to divide the world into black and white is strong, and it affects mostly those who are safe and have not suffered from Russian aggression. But a balanced approach is needed that takes people's normal daily needs into account.” According to Serhiy Zayets, the line between the normal and the illegal can be drawn based on one’s personal beliefs on the issue of assistance or disapproval of the occupier.

“If we talk about criminal liability for collaborative activities under the Criminal Code of Ukraine, the wording of Art. 111-1 of the Criminal Code is not perfect. For example, promoting the establishment of Russian educational standards is important when it comes to the humanities, such as history, literature, and so on. But there is hardly a significant discrepancy in the teaching of the natural and exact sciences (mathematics, physics, biology, etc.). Geography is a bit more complicated because it has a significant political component. And the responsibility for “economic activity in cooperation with the aggressor state” is an extremely unfortunate formulation. To some extent, everyone interacts with the occupier in the occupied territories. The occupier may impose taxation or require permission to sell even one’s own vegetables. Is it an interaction? Some economic activity is needed to sustain the city. After Bucha and Irpin, one can hardly expect the occupier to be particularly concerned about the humanitarian situation in the occupied territories.”

“The very concept of "interaction" in this case can be interpreted more or less unambiguously only on the basis of case law, which will develop over a long period of time in the future”, said the lawyer. “When different situations, different accusations are considered and verdicts are appealed, then the border will be drawn. Unfortunately, this can break more than one human life. It is also important whether the actions were taken voluntarily, under duress or in a state of extreme necessity.”

In general, in the case of occupation, international humanitarian law requires the occupier to adhere to the regime of "conservation", i.e., not to change anything in the occupied territories without extreme necessity. The idea of ​​international humanitarian law is that civilian life should be as separate and protected from the war as possible. However, Russia does not comply with these requirements and is waging an aggressive war, which is forcing the Ukrainian government to seek a solution to address the actual situation, which is far from ideal in terms of international humanitarian law.

Three main issues for the inhabitants of the occupied territories

Berdiansk residents are forced to survive in the new conditions dictated by the occupiers

1. What social assistance can be expected in the occupation?

According to labor lawyer Hanna Lysenko, citizens who are in the occupied territories, or who were evacuated from settlements where hostilities continue, or live in deoccupied settlements, according to the Resolution of the Cabinet of Ministers of Ukraine # 457 of 16.04.2022 have the right to receive assistance in the amount of UAH 2,000 per month. To receive such cash benefits, citizens can apply for assistance by filling out a form on the information platform "eDopomoga" (e-Help).

In addition, for persons under temporary occupation, Ukraine has continued the accrual and payment of wages and social benefits (pensions, social and other benefits and subsidies, etc.) in full.

2. What can be done now to return to work after de-occupation?

If workers are currently staying in the occupied territories, the employer may:

• introduce remote or home-based work if possible and with the continued payment of wages,

• declare a downtime period with the payment of 2/3 of the employee's salary,

• provide annual basic leave of no more than 24 days and additional leave, if possible,

• provide unpaid leave indefinitely for the duration of the war,

• suspend the employment contract and salary payment, but retain the position. The employer fixes the amount of potential salary, as well as the Unified Social Benefits (to be able to further recover damages from the aggressor country and pay compensation).

If the employer is not able to agree to any of these options, the employee may not go to work and does not have to submit any applications to the occupier or collaborator.

If workers continue to perform their work in the occupied territories and do not perform any of the actions specified in Art. 111-1 of the Criminal Code of Ukraine, such actions of employees cannot be associated with collaboration with the enemy.

3. What has changed in labor law during martial law?

While under martial law, the government passed a number of laws in the field of labor law, which should be known to workers working in the occupied territories.

On March 24, 2022, the Law # 2136 "On the organization of labor relations in wartime, which regulates the registration of labor relations, changes in essential working conditions, granting or refusing leave, dismissal and suspension of employment contract" took force.

On May 12, 2022, the Parliament of Ukraine adopted three bills based on which it plans to change labor relations in nearly the entire labor sphere:

• # 7251 on the optimization of labor relations in martial law,

• # 5371 on concluding an employment contract under a contractual regime that is different from the terms of the Labor Code of Ukraine,

• # 5266 on strengthening the protection of workers' rights. The last one introduced amendments related to collective bargaining, discrimination related to labor relations, and mass dismissals.

According to these laws, employees can terminate their employment contract through the employment center in the event of the death of an individual entrepreneur who was their employer, or that employer’s recognition as missing or dead. To do so, one must submit an application to the employment center at the place of residence, as well as an application for termination of employment.

If it is impossible to provide employees with work due to the destruction of production facilities, organizational and technical conditions, means of production or property of the employer as a result of hostilities, the employee may be dismissed. However, such dismissal is possible only as a last resort if the employee cannot be transferred to another job with his consent and with the payment of severance pay in the amount not less than the average monthly salary.

The procedure of redundancy dismissal (with a 10 days’ notice) can also be simplified if the dismissal involves the destruction of the employer's property as a result of hostilities.

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