What Explains Punishment in Historical Memory-Related Court Cases? The Case of Ukraine since 2022

Abstract

The article examines the Ukrainian courts’ enforcement of the ban on Soviet propaganda. Since Russia’s full-scale invasion in 2022, there has been an unprecedented surge in criminal cases and convictions involving the application of Article 436-1 of the Criminal Code, introduced by the De-communization Law of 2015. Yet until 2022, this Article accumulated only trivial criminal legal practice. I examine the activation of this punitive memory law and ask what motivates judicial decision-making when a historical policy is considered in a courtroom? This qualitative comparative analysis examines 183 Ukrainian court verdicts involving the application of Article 436-1 between 2015 and 2024. I test six hypotheses regarding the rise in convictions and find that the location of the court, the connection of indictment to charges on other provisions of the Criminal Code, and the quality of legal reasoning do not explain the punitive turn alone. I then supplement these findings with insights into the case law and legal reasoning by Ukrainian judges. The empirical analysis yields both theoretical and practical insights about mnemonic security-seeking and wartime criminal justice in Ukraine.