Weekly analysis for 19 — 25 August

Absolute Immunity for Intelligence and Counterintelligence Officers In Cases of Committing Crimes under a “Special Assignment”

Event

On July 16, the relevant Parliament Committee on Law Enforcement Activities presented a comparative table for consideration of the Draft Law “On Amendments to the Criminal Code of Ukraine and Other Laws of Ukraine regarding the Regulation of Issues of Counteracting Intelligence and Subversive Activities of Foreign Special Services”, registered on May 10, 2024, № 11228-1 (hereinafter – the Draft Law)  in the second reading. The Draft Law proposes, in particular, the following amendments to Article 43 of the Criminal Code of Ukraine (CC):

1) an act shall not be deemed a criminal offense if harm to legally protected interests is caused by a person who, in accordance with the law and in the interests of safeguarding the national security and defense of Ukraine, performed a counterintelligence or intelligence assignment that had been previously authorized by the competent superior, where such harm could not reasonably have been avoided;

2) damages resulting from such harm shall be compensated by the state in the manner prescribed by law or pursuant to a court decision granting a claim for compensation lodged by the injured party.

CPLR’s assessment

1. Under the current Part 1 of Article 43 of the CC, harm unavoidably caused to legally protected interests by a person who, in accordance with the law, was performing a special assignment by participating in an organized group or criminal organization with the aim of preventing or exposing their unlawful activities is not deemed a criminal offense.

In such a case, the exclusion of an action contrary to criminal law is justified by the need of exposing the criminal activities of an organized group or a criminal organization, where infiltration would be virtually impossible without committing certain offenses and thereby causing some harm to protected interests. The necessity is linked to the real risk to an individual’s life and health in the event of being exposed.

However, according to the Draft Law, the grounds for exemption from criminal responsibility are limited solely to the fact that an individual: (a) acted in accordance with the law, (b) acted in the interests of ensuring the national security and defense of Ukraine, and (c) carried out a counterintelligence or intelligence assignment that had been authorized in advance by the competent superior.

2. The Draft Law does not introduce a corresponding amendment to Part 2 of Article 43 of the CC, which limits the maximum permissible harm caused by an individual performing a special assignment to expose criminal activities of an organized group or criminal organization. Specifically, according to Part 2 of Article 43 of CC, “a person shall be subject to criminal responsibility for committing, as part of an organized group or criminal organization, an especially grave crime committed intentionally and accompanied by violence against the victim, or a grave crime committed intentionally and resulting in serious bodily injury to the victim or in other grave or especially grave consequences”. Accordingly, the provisions of Part 2 of Article 43 of the CC do not extend to actions committed in the course of counterintelligence or intelligence assignments. This means that counterintelligence and intelligence officers are exempt from criminal liability for any offenses, regardless of their severity, including especially grave crimes involving a large number of victims.

3. According to the Explanatory Note to the Draft Law, “In the course of performing such assignments, the actions of a counterintelligence officer or a person cooperating with counterintelligence on a confidential basis may contain elements of crimes punishable, among others, by Articles 111, 111-1, 258-3, 260 of the CC”.
If the Draft Law is genuinely intended to exclude certain acts contrary to the criminal law committed in the performance of a “special assignment,” it should either (a) specify the articles of the Special Part of the CC that may fall under such an exception, or (b) set out a general formulation, similar to the wording used in Part 2 of Article 43 of the CC. Otherwise, the proposed provisions risk creating artificial grounds for evading criminal responsibility for corruption-related, official, sexual, military, and other types of crimes.

An alternative solution could be the application of the doctrine of necessity, by supplementing Part 1 of Article 43 of the CC with the fourth paragraph as follows:

“The issue of a person’s criminal liability for causing harm to legally protected interests under the circumstances specified in the second paragraph of this part shall be resolved in accordance with Article 39 of this Code”.

At the same time, effective oversight must be provided for to ensure that the approval of a counterintelligence or intelligence assignment by the relevant superior does not appear retroactively, when institutional interests might push the leadership of intelligence or counterintelligence bodies to use such approval as a means of shielding a particular staff member or undercover operative from criminal responsibility.

It should also be taken into consideration that individuals engaged in confidential cooperation with counterintelligence entities and intelligence agencies may include those persons predisposed to criminal behavior, including the commission of grave and especially grave crimes.

Thus, the Draft Law, in its currently proposed version, opens the door to selective justice; as such, it should be revised.

Responsibility for violations of the procedure for crossing the state border

Event

On August 21, draft law № 13673 “On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and Other Laws of Ukraine Regarding Responsibility for Offenses Related to Crossing the State Border of Ukraine” (the Draft Law) was submitted for the Verkhovna Rada’s consideration.

The Draft Law proposes amendments to the Criminal Code of Ukraine (CC), in particular to:

– increase responsibility for the unlawful transfer of persons across the state border of Ukraine (Part 3, Article 332) and for crossing or attempting to cross the state border of Ukraine during martial law or a state of emergency (Part 4, Article 332-2);

– introduce responsibility for obstructing the arrangement of border infrastructure, its damage or destruction (new Article 332-3), as well as for violations by conscripts, reservists, or militarily committed persons of the statutory time limits for staying outside Ukraine (new Article 337-1).

CPLR’s assessment

The Centre of Policy and Legal Reform generally supports this Draft Law. However, certain provisions require clarification.

1. In Article 332-2 of the CC, it is proposed to establish identical liability both for crossing the state border of Ukraine and for attempting to cross it. However, the CC (Article 15) usually uses the concept of an “attempt to commit a criminal offense”. That is, an individual who attempted to cross the state border of Ukraine, but did not complete the criminal offense for reasons beyond his/her control (for example, were detained by a border patrol), should be held liable under Articles 15 and 332-2 of the CC, with punishment determined in accordance with Parts 1 and 3 of Article 68 of the CC. There is no reason, in this case, to undermine the theoretically substantiated and widely applied criminal-law constructs, as well as the overall systematic coherence of the CC.

Therefore, it is necessary to exclude the words “or attempt”.

2. The proposed sanctions for certain actions appear disproportionate. For example, under martial law, an individual who crosses the state border may face a maximum sentence of up to 3 years’ imprisonment and, in some cases, may even be exempted from liability (Parts 4 and 5, Article 332-2 of the CC). At the same time, an individual who facilitated the unlawful transfer of another individual across the state border of Ukraine – even merely by offering advice – is subject to imprisonment for a term of 7 to 9 years (Part 3, Article 332 of the CC) and cannot be exempted from criminal liability.

In view of this, it would be more appropriate to remove the words “or assistance in their commission by advice, instructions, provision of means, or removal of obstacles” from Part 1, Article 332 of the CC. In such cases, an individual would be held liable under Part 5, Article 27 and Article 332 of the CC as an accomplice to a criminal offense. This would allow the court to impose punishment in accordance with Part 5, Article 68 of the CC – typically somewhat milder than that imposed on the perpetrator  and organizer of the crime under Article 332 of the CC.

3. Certain provisions of Article 332-3 appear to involve excessive and unjustified criminalization, specifically: a) obstructing the construction, arrangement, or maintenance of border infrastructure facilities; and b) damaging such facilities.

By its very nature, obstruction of the construction, arrangement, or maintenance of such facilities constitutes an administrative offense, as it infringes upon the established order of governance. It should qualify as a criminal offense only where, for example, it is committed through violence or threats of violence, or where it causes consequences, such as delays in scheduled construction (or arrangement) etc. The concept of “obstructing maintenance” also requires clearer definition, particularly regarding the socially dangerous methods and consequences it entails.

Damage to such facilities should be deemed a criminal offense only if it at least resulted in the disruption of their normal functioning or caused substantial harm (the amount of which should be specified in the article).

4. Article 337-1 of the CC proposes to establish responsibility for conscripts, militarily committed persons, and reservists who violate the statutory period of stay outside Ukraine.

According to the Law “On Military Duty and Military Service”, conscripts are individuals registered for military service; militarily committed persons are those in the reserves who are designated for staffing military formations during special periods and for performing tasks related to national defense; and reservists are individuals serving in the military reserve of military formations who are assigned to staff formations both in peacetime and during special periods.

Thus, individuals who evade military registration and are neither conscripts nor militarily committed persons or reservists fall outside these three categories.

Furthermore, such individuals are also not subject to responsibility under Article 335 of the CC, which criminalizes evasion of conscription for compulsory military service, since compulsory military service no longer exists. Back in 2024, it was replaced by basic military service, but the Criminal Code has not yet been amended to reflect this change.

5. According to Part 1, Article 92 of the Constitution of Ukraine, human and civil rights and freedoms, the guarantees of these rights and freedoms, and the fundamental duties of citizens are determined exclusively by the laws of Ukraine, not by subordinate acts.

The current legislation governing the period of stay outside Ukraine for certain categories of individuals is contained in the Rules on Crossing the State Border by Citizens of Ukraine, approved by the Cabinet of Ministers of Ukraine, as amended on August 25, 2010, № 724, pursuant to Article 3 of the Law “On the Procedure for Exit from Ukraine and Entry into Ukraine by Citizens of Ukraine”. However, neither this law nor any other legal provisions specify the permissible duration of stay abroad or any associated limitations.

According to Part 1, Article 92 of the Constitution of Ukraine, human and civil rights and freedoms, the guarantees of these rights and freedoms, and the fundamental duties of citizens are determined exclusively by laws of Ukraine, not by legal regulations.

Therefore, any limitation on the period of stay outside Ukraine must be established by law.