Iryna Iakovets: «I think it’s time to stop the »fight with windmills« and waste of our money»

Head of the Center for Legal Support of the Development of Science and Technology of the Scientific Research Institute of Intellectual Property of the National Academy of Sciences of Ukraine, doctor of legal sciences, senior researcher Iryna IAKOVETS comments on the latest criminalization actions of law enforcement agencies against sex workers of Ukraine from a legal point of view.

Recently, the Internet has been buzzing with reports that law enforcement agencies have uncovered yet another place of debauchery and prosecuted those who organized it. Moreover, such places include both brothels and all kinds of massage parlors, in which, according to the law enforcement officers, they are engaged in prostitution and pimping.

“Legalife-Ukraine”: Irina, we welcome you to our portal! Do you think this practice is appropriate and has any results in the overall fight against crime?

Iryna Iakovets: Yes, such cases have become much more frequent nowadays. If we open the Internet and enter a couple of keywords, we will see a lot of such information, including on the official pages of law enforcement agencies. Moreover, the law enforcement officers fight "debauchery" "desperately", not sparing their own health, family well-being and state funds. Because in order to initiate the proceedings, at least as it follows from the official reports, it is necessary to conduct several purchases of such "promiscuity and solicitation" services for proper legal registration. That is why the relevant employees have to go to "brothels and massage parlors" and buy the services of prostitutes. And many of them are married, so they put their family life at risk. Likewise, there is a merciless fight against web camming, circulation of nudes and other similar things. And all this is for the "peace, security and morality" of society. Of course - this is sarcasm.

In fact, when we say that some phenomenon poses a threat to society or morality, and the struggle carried out has a positive effect on all these things, we need concrete and clear arguments, what has improved and what the state money (or rather, ours and yours as taxpayers) have been spent on funds. And these funds are not small.

For a state governed by the rule of law, it is extremely important to observe a number of principles of interaction with citizens, which include the clarity and specificity of the law (so that a person knows what can and cannot be done), as well as non-interference in the personal (in particular, intimate) sphere.

Iryna Iakovets

But what is happening now in practice? So-called brothels and erotic massage parlors are subject (at least according to law enforcement) to liability under Art. 302 of the Criminal Code of Ukraine, which is called “Creation or maintenance of places of debauchery and pimping.”

 What is a “place of debauchery” and “pimping” in general? What actions are debauchery or pimping?

I would like to say right away that the terms ‘brothel’ and ‘pimping’ are not defined in any regulatory act. Not in any single regulatory act!

An analysis of current case law also shows that there is a lack of clarity in the approach to understanding the concepts of ‘brothel’ and ‘pimping’, as court decisions do not clearly define the content of these categories. In their decisions, the judicial authorities usually limit themselves to general wording, such as ‘engaged in keeping a brothel and procuring for prostitution’. In a significant number of court decisions, pimping is understood as mediation in the provision of: a) sexual services; b) services of a sexual nature; c) services of an intimate nature; d) satisfaction of sexual needs. Again, there is no definition of what sexual/intimate/erotic services/needs/actions are.

The scientific literature also lacks a unified approach even to the terminological interpretation of the actions in question. As a rule, one of the key features of a brothel is the provision of sexual services (without specifying what such services include). Interestingly, a sexual act itself does not always have to take place for a person to be held liable.

By the way, no one knows for sure what lewdness is. Moreover, in different times and in different societies, the meaning of debauchery as a phenomenon has not been the same. For example, until recently, extramarital affairs or even civil marriage were considered by some members of our society to be nothing more than an immoral phenomenon, debauchery. Indeed, after the declaration of independence, civil marriage was outlawed in Ukraine for quite some time. But not anymore!

As you can see, the boundaries in defining certain human actions as depraved are now quite arbitrary - what is considered the norm or almost the norm of sexual behavior in some societies is nothing more than an offence, or at least behavior that is condemned by many people according to the canons of morality, religion, etc.

This excludes the possibility of a single interpretation of the acts covered by the concept of ‘debauchery’, which is a gross violation of the principle of legal certainty in the formulation of a criminal law prohibition.

The doctrine of criminal law emphasises that the conceptual apparatus of any normative act, including the Criminal Code of Ukraine, must meet certain requirements. Ideally, such an apparatus should be self-sufficient, and there should be no need to refer to sources other than the criminal law to clarify the content of its components.

One of the key principles enshrined in the Convention and in the decisions of the ECtHR (European Court of Human Rights) is the principle of legal certainty of the law. In general, this principle is enshrined in Art. 7 of the Convention: “No punishment without law”, Part 1 of which provides that no one can be found guilty of a criminal offense on the basis of any act or omission which, at the time of its commission, did not constitute a criminal offense under national laws or for international law. In this article, as noted in the scientific literature, several independent aspects can be distinguished: the principle of nullum crimen, nulla poena sine lege and, accordingly, the prohibition of applying criminal law to offenses that are not provided for in it; the rule not to interpret extensibly in this regard the criminal law.

In its judgment in Tolstoy-Miloslavsky v. the United Kingdom, the ECtHR explained that the right must be accessible and predictable.

The judgement in the case of The Sunday Times v. the United Kingdom states that a rule cannot be considered a ‘law’ if it is not formulated clearly enough to allow a person to correlate his or her behavior with it. Each citizen, depending on the circumstances, should be aware of which legal provision applies in a particular case and be able, with the help of competent advisers, to predict, within reasonable limits, based on the given circumstances, what consequences a particular act may have.

A similar position was repeatedly adopted in other decisions of the ECtHR. In particular, at the decision of “S.W. v. the United Kingdom" it is stated that any crime must be clearly defined in the law, and it is necessary that everyone can understand from the text of the relevant article, and if necessary, through judicial interpretation, what action or inaction is criminal. 

The European Court of Human Rights notes that national courts must choose the means of such interpretation, which may usually include legislative acts, relevant practice, scientific research, etc. (VOLOVIK v. UKRAINE, no. 15123/03, § 45, ECHR, 06 December 2007). The rule of law requires the state to implement it in law-making and law enforcement activities (para. 4.1 of the Decision of the Constitutional Court of Ukraine of 02 November 2004, No. 15-rp/2004).

"L-U": So it looks like, a person cannot bear responsibility for norms that are not clearly formulated?

I.I.: Yes. This also follows from the ECtHR judgement «Litschauer v. the Republic of Moldova». In this case, the ECtHR noted that in light of the debate on whether performances in an erotic video chat constitute sexual contact, the applicant could not be expected to foresee the consequences of his behavior.

In its judgment of 27.04.2021 in the case of «Baraboi and Gabura v. the Republic of Moldova», the Court noted that the government had not provided any arguments that would allow it to deviate from the previously made conclusion. On the contrary, the decisions of the national courts only reinforced the conclusion that the legislation remained unclear and discussions about the qualification of such acts continued.

This gave grounds for the ECtHR to state: the relevant legal norms were not formulated with the degree of precision to satisfy the requirement of legality. Consequently, the convention’s requirement on the quality of law was not complied with.

In these circumstances, the Court concluded that the relevant legal provisions did not provide sufficient guidance and were not formulated with the degree of precision required by the Convention to satisfy the ‘lawfulness’ requirement of the Convention (Steel and Others v. the United Kingdom, 23 September 1998, § 55, GCITR 1998 - VII). Thus, the applicant could not reasonably be expected to foresee the consequences of his behavior, even if he had received appropriate legal advice.

Iryna Iakovets on a meeting during the All Ukrainian Forum of sex workers, December of 2023

In Ukraine, there is no algorithm and clear procedure for assessing actions for signs of lewdness. Legislation (in the broad sense of the word) does not establish either procedures or criteria for determining signs of lewdness in a person’s actions. Neither has judicial practice, which is still characterised by ambiguity in both the terminology and the use of different names for the same actions (and vice versa). 

As a result, criminal liability is imposed under conditions that are recognised by the ECtHR as a violation of the Convention. At the same time, even turning to professional lawyers does not eliminate this gap.

As a result, liability on the basis of rules whose wording does not allow to clarify their meaning is a violation of human rights, in particular Article 7 of the Convention, and is therefore inadmissible in a country that is a member of the Council of Europe and has signed and ratified the Convention.

Under such circumstances, the provisions of Article 302 of the CC of Ukraine should be recognised as legally null and void and cannot be applied in a democratic country.

We all know that the fight against prostitution (sex work) lasted for thousands of years. And this struggle was unsuccessful. Sexual services have been and are still being provided. Accordingly, they have been bought and are still being bought.

Therefore, I believe that it is time to stop the "fight against windmills" and unnecessary spending of our funds on something that does not pose a real threat to society and can, on the contrary, help our economy.

"L-U": How can you comment from the legal point of view on the discussion about the prohibition or decriminalization of erotic content in Ukraine?

I.I.: Erotic content has already raised over UAH 28 million for the defence of Ukraine. However, the production and circulation of porn is currently completely banned in Ukraine. The maximum sanction for violating the ban is seven years in prison. The law refers to abstract concepts such as ‘unworthy instincts’, ‘baser instincts’ and ‘anti-ethical scenes’. The loose interpretation of these concepts allows law enforcement to threaten criminal prosecution and extort bribes even from people who create material that is far from pornography.

Ukraine is among the top 20 countries in terms of traffic consumption on Pornhub. The onlyfans platform, which offers pornographic products, was one of the first foreign companies to pay tax on the provision of electronic services in Ukraine. Erotic content is used to collect donations for Ukraine’s defence purposes.

In other words, both sex and porn have been, are, and will be in Ukraine!

And although the existing legal barriers are not able to significantly restrict the consumption or creation of pornographic products, sexual or other services, thousands of people are subject to criminal prosecution under the relevant article. The resources spent on these criminal prosecutions could have been used to combat truly socially dangerous acts.

All this shows that Ukrainian legislation is not yet in line with the experience of most EU member states and international treaties.

That is why I support the legalization of porn production (with the voluntary consent of both the producer and the user), the decriminalization of sex work, the payment of taxes, etc.

We must remember that the realities of war, the respective morale and physiological needs of many Ukrainians may interfere with ‘traditional’ forms of sexual satisfaction. And the World Health Organization emphasises that sexual health is: "...a state of physical, emotional, mental and social well-being in relation to sexuality; it is not merely the absence of disease, dysfunction or disability. Sexual health requires a positive and respectful approach to sexuality and sexual relationships, and the ability to have pleasurable and safe sexual experiences free from coercion, discrimination and violence. To achieve and maintain sexual health, the sexual rights of all people must be respected, protected and fulfilled.

Therefore, I believe it is extremely relevant and appropriate to amend the legislation to decriminalise and provide official status to all these activities, which will be in line with the experience of EU countries, international conventions and common sense.

"L-U": Iryna, thank you very much for this conversation and comment!

Interview: CO ‘Legalife-Ukraine’