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Introduction of criminal liability for illegal border crossing during martial law

The Verkhovna Rada of Ukraine has received two bills proposing the establishment of criminal liability for illegal crossing of Ukraine state border during martial law. We see that there is possibility of adopting the relevant law on the basis of submitted bills.

At the same time, given the significant outflow of Ukraine’s population abroad, which according to the UN as of April 4 amounted to 4,244,595 people, we consider it necessary to inform you about the details of such legislative initiatives.

BILL №7171 dated March 17, 2022

It is proposed to supplement the Criminal Code of Ukraine with a new Article 332-3, which will establish criminal liability for illegal crossing of the state border of Ukraine during a special period or during martial law.

It is proposed to prosecute the following persons for illegal crossing of the state border:

servicemen (persons serving in the military);

conscripts persons who are in reserve to recruit the Armed Forces of Ukraine and other military formations for a special period, as well as to perform work to ensure state defense, including:

* men from 18 to 60 years;

* women who have a specialty and / or profession related to the relevant military accounting specialty, defined in the list approved by the Ministry of Defense of Ukraine, and suitable for military service due to health and age from 18 to 60 years;

reservists (persons serving in the military reserve of the Armed Forces of Ukraine, other military formations and intended for their recruitment in peacetime and in special periods);

persons subject to mobilization;

People’s Deputies of Ukraine;

deputies of local councils;

officials of state authorities and local governments;

village, settlement, city mayors;

law enforcement officers;

judges;

judges of the Constitutional Court of Ukraine;

prosecutors.

It is proposed that criminal liability for such a crime should consist of imprisonment for a term of 5 to 10 years with or without confiscation of property.

It is seen that the bill proposes to prosecute these persons who crossed the state border of Ukraine without legal grounds under the legal regime of martial law, ie in the period from 05 hours 30 minutes on February 24, 2022.

Additionally, the bill provides for the establishment of criminal liability for committing a crime consisting in officials and / or servicemen of the State Border Guard Service of Ukraine assisting in illegally crossing the state border of Ukraine by the above-mentioned persons during martial law. These actions of officials are punishable by imprisonment for a term of 7 to 12 years with or without confiscation of property.

The draft law also adds a new paragraph 23 to Chapter II of the Final and Transitional Provisions of the Criminal Code of Ukraine, according to which a person is NOT criminally liable for illegally crossing the state border of Ukraine during martial law if such person returns to Ukraine within 10 days after the law on the establishment of criminal liability for illegal border crossing enters into force.

BILL №7171-1 dated March 31, 2022

Bill №7171-1 is an alternative to Bill №7171, accordingly it proposes to define in the new Article 332-3 of the Criminal Code of Ukraine criminal liability for crimes consisting of:

1. crossing the state border of Ukraine by citizens of Ukraine under martial law in any way outside the state border checkpoints or at state border checkpoints using forged documents or documents containing inaccurate identity information or any covert means or without the permission of the relevant authoritiespunishable by imprisonment for a term of 3 to 5 years;

2. the same acts committed:

conscripts;

reservists;

persons subject to mobilization;

People’s Deputies of Ukraine;

deputies of local councils;

officials of state authorities and local governments;

village, town, city mayors;

law enforcement officers;

judges;

judges of the Constitutional Court of Ukraine;

prosecutors

– punishable by imprisonment for a term of 5 to 10 years with or without confiscation of property.

The above-mentioned acts committed repeatedly or by a group of persons are punishable by imprisonment for a term of 8 to 12 years with or without confiscation of property.

The above-mentioned acts committed in combination with violence or the use of weapons are punishable by imprisonment for a term of 10 to 15 years with or without confiscation of property.

Unlike the Bill №7171 of 17.03.2022, the Bill №7171-1 does not provide for non-application (exemption) from criminal liability of persons who illegally crossed the state border of Ukraine during martial law, if they return to Ukraine within 10 days from the date of entry into force of the relevant Law, which will establish criminal liability. The initiators of the bill explain this by saying that such a crime is a betrayal of the state and cannot be justified.

However, this approach contradicts the principles of law, which we note below.

COMMENTS ON BILLS

Both Bills raise a number of comments, including:

  1. an act is not subject to criminal liability if it was committed before the entry into force of the relevant law of Ukraine, which recognizes the act as illegal (crime).

In accordance with Part 2 of Art. 58 of the Constitution of Ukraine “no one can be held responsible for acts that at the time of their commission were not recognized by law as an offense”, and in accordance with Part 2 of Art. 5 of the Criminal Code of Ukraine, the law on criminal liability, which establishes or strengthens the criminal liability of the act or otherwise worsens the situation of the person, has no retroactive effect.

Thus, since before the entry into force of the norm of Criminal Code, provided in Bills №7171 and №7171-1, the act was not considered an offense, the person in general (regardless of its return or non-return to Ukraine) is not subject to criminal liability for the act, if committed before the entry into force of the relevant law of Ukraine.

In addition, it is incorrect to define that it is illegal to “cross” the state border of Ukraine, because this concept includes both leaving Ukraine and entering Ukraine. Therefore, in this case it should be about illegal departure (or attempted illegal departure) outside the territory of Ukraine, or illegal stay outside the territory of Ukraine, or illegal refusal to return to the territory of Ukraine.

Comment:

That is, persons who have already crossed illegally, namely left the territory of Ukraine before the entry into force of the Law, which defines such departure as a criminal offense, cannot be prosecuted for this.

However, it cannot be ruled out that the bill will be finalized and determined:

– the requirement to return to Ukraine within a certain period, and in case of non-return of the person, he may be prosecuted;

– criminal liability for staying abroad during martial law, etc.

2) At present, at the legislative level, there are no bans on travel abroad during martial law, and / or criteria for granting permission / ban on travel abroad.

The frequently mentioned ban on the travel of men between the ages of 18 and 60 is based on clarifications from the State Border Guard Service. Violation of such a prohibition can hardly be considered a sufficient legal basis for criminal prosecution.

Therefore, criminalization of acts of illegal crossing of the state border should be preceded by the establishment of appropriate prohibitions in the regulatory legislation of Ukraine. In particular, in accordance with Part 1 of Art. 1 of the Law of Ukraine “On the Procedure for Leaving Ukraine and Entering Ukraine by Citizens of Ukraine” a citizen of Ukraine has the right to leave Ukraine, except as provided by this Law, and enter Ukraine.

In turn, in Art. 6 of this Law provides an exhaustive list of grounds for temporary restriction of the right of citizens of Ukraine to leave Ukraine. This list should be supplemented, which should precede the criminalization of acts of illegal border crossing (and / or stay abroad) during martial law;

3) the question of what grounds for leaving Ukraine during martial law for the relevant category of persons will be recognized as legal requires detailed regulation (for example, the exportation from Ukraine of a child by a female serviceman);

4) the list of those persons who may be prosecuted for illegal border crossing (and / or stay abroad) during martial law is subject to revision and clear definition, in particular, a ban on the following categories of persons can hardly be considered justified:

women who, according to the List of specialties / professions, after which women are enlisted in the military, given that the list is quite wide and women with relevant specialties / professions in many cases were centrally evacuated abroad from active areas of combat operations;

officials of state authorities and local governments. It is unclear what category of officials are involved in this case. Based on the literal interpretation of the phrase “officials of public authorities and local governments”, such persons may include, for example, all without exception, taxpayers, government officials, etc .;

deputies of local councils, as they exercise their parliamentary powers on a voluntary basis, in addition, sessions of local councils are held from time to time, and military administrations have been established in a number of administrative-territorial units for the period of martial law;

5) such type of punishment as the confiscation of property cannot be considered commensurate. In accordance with Part 2 of Art. 59 of the Criminal Code of Ukraine confiscation of property is established for serious and especially serious mercenary crimes, as well as crimes against the national security of Ukraine and public safety, regardless of their severity and may be imposed only in cases specifically provided for in the Special Part of the Criminal Code.

Instead, the crime of illegally leaving Ukraine during martial law does not fall into the category of criminal offenses against the foundations of Ukraine’s national security and public safety.

The confiscation of property can be considered justified only if the guilty person in connection with the commission of a crime receives a certain material benefit for himself or other persons from the alien property. The fact of illegal crossing of the state border of Ukraine during martial law itself can hardly be regarded as a mercenary crime.

It should be noted that these comments were expressed in the Scientific and Expert Opinion of 19.03.2022 to the Bill №7171 and in the Opinion of 05.04.2022 to the Bill №7171-1 (prepared for the first reading).

However, both Conclusions state that in general the establishment of a criminal ban on restricting the departure from Ukraine under the legal regime of martial law or special period by servicemen, conscripts, reservists, persons subject to mobilization, as well as certain categories of persons authorized to perform functions of state or local self-government, is not denied.

CONCLUSIONS

It is seen that these bills №7171 and №7171-1 define the attempt of legislators to stop the mass departure of Ukrainians abroad and encourage the return of those who have already left, in order to ensure the state’s defense capabilities.

However, these projects need significant refinement, in particular, the adoption of the Law, which will determine the regulations for leaving the territory of Ukraine during martial law. Only after that it is possible to adopt a law that will establish criminal liability for committing such acts during martial law (and special period) as, for example:

illegal crossing of state border and / or

illegal stay on the territory of foreign states and / or

refusal to return to Ukraine within 10 days (or another period).

The law establishing criminal liability is considered to be developed taking into account the remarks of the Scientific and Expert Opinion to the draft law №7171, which are described above.