20 Mar, 2024
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The value of “petty” property may exceed the cost of a consumer basket. What are the consequences?
Event
On March 8, a group of Ukrainian MPs registered draft law № 11068 “On Amendments to the Code of Ukraine of Administrative Offenses regarding strengthening the responsibility for petty theft of property”.
The draft law proposes to define the following:
1) the larceny of another’s property by means of theft, fraud, misappropriation, or embezzlement is considered petty if the value of such property at the time of the offense does not exceed 0.5 of the tax-free minimum income (TFMI) – which is currently set at UAH 757. Such an act may be punishable by a fine of 10 to 50 TFMIs (currently 170 to 850 UAH), or community service for a period of 20 to 30 hours, or administrative arrest for up to 5 days (part 1 of Article 51 of the Code of Administrative Offenses). According to the current version of the Code of Administrative Offenses, the such theft is considered a petty theft if the value of the property does not exceed 0.2 TFMI – i.e., UAH 302.8;
2) 2) theft, fraud, misappropriation, or embezzlement of another’s property committed in a significant amount – that is, if the value of the property does not exceed 3.0 TFMI (currently UAH 4,542) – is also considered petty, as odd as this may sound. Such actions will be punishable by a fine of 50 to 300 TFMI (UAH 850-5,100), or community service of 30 to 40 hours, or correctional labor for up to one month with a deduction of 20 percent of earnings, or administrative arrest for 5 to 10 days (part 2 of Article 51 of the Code of Administrative Offenses);
3) repeated commission of similar violations within a year, in the event a person has already been subjected to an administrative penalty, is also an administrative offense. The penalty for such an action is a fine of 300 to 500 TFMI (UAH 5,100-8,500), or community service for a term of 40 to 60 hours, or correctional labor for one to two months with a deduction of 20 percent of earnings, or administrative arrest for a period of 10 to 15 days (part 3 of Article 51 of the Code of Administrative Offenses);
4) 4) it is prohibited to relieve from administrative responsibility in the case of commitment of a minor offense via replacement with an oral warning for an administrative offense under parts 2 and 3 of Article 51 of the Code of Administrative Offenses (Article 22 of the Code of Administrative Offenses);
5) the maximum statute of limitations for imposing an administrative penalty for petty theft of another’s property (counting from the date of the offense) is increased from three months to two years (Article 38 of the Code of Administrative Offenses);
6) 6) in cases of offences under Article 51 of the Code of Administrative Offenses, the owner of an enterprise, institution, organization, or his/her authorized entity will no longer have the right to draw up reports on administrative offenses (Article 255 of the Code of Administrative Offenses);
7) the presence of a person being subjected to administrative responsibility will not be mandatory in proceedings for administrative offenses under Article 51 of the Code of Administrative Offenses (Article 268 of the Code of Administrative Offenses);
8) the term within which courts will have to consider cases on administrative offenses under Article 51 of the Code of Administrative Offenses is increased from 5 to 15 days from the date of receipt of a report on administrative offense and other materials (Article 277 of the Code of Administrative Offenses).
CPLR’s position
Despite the minor textual scope of the draft law, it may cause serious legal and other consequences.
The value of another’s property that is considered petty under Article 51 of the Code of Administrative Offenses distinguishes between administratively punishable theft, fraud, misappropriation, or embezzlement and similar acts punishable under criminal law – parts 1 and 2 of Article 185, parts 1 and 2 of Article 190, and parts 1-3 of Article 191 of the Criminal Code of Ukraine. Accordingly, part 3 of Article 185 and part 3 of Article 190 refer to theft and fraud that caused significant damage to the victim (over 100 TFMI – currently UAH 151,400), and part 4 of Article 191 of the Criminal Code of Ukraine refers to misappropriation and embezzlement committed in large amounts (over 250 TFMI – UAH 378,500).
According to court statistics, in 2023, 6,287 people were convicted under Article 51 of the Code of Administrative Offenses (half of the cases on review in courts), and 3,630 people were convicted under parts 1 and 2 of Article 185, parts 1 and 2 of Article 190, and parts 1-3 of Article 191 of the Criminal Code of Ukraine. Nevertheless, the amount of stolen property is not reported in statistics. It can only be assumed that this amount is higher than UAH 4,542 in the vast majority of cases relating to the relevant criminal offense.
Thus, in case of introduction of the proposed amendments to the Code of Administrative Offenses, persons committing theft, fraud, misappropriation, or embezzlement of property valued up to UAH 4,542 will be subject to administrative rather than criminal, responsibility.
In this regard, it should be recalled that in 2024, the minimum living wage for able-bodied persons will be one and a half times less – i.e., UAH 3,028. This is a cost estimate of the consumer basket containing the minimum set of foods, non-food items, and services necessary to maintain human health and ensure livelihood.
For example, such common objects of theft, fraud, misappropriation, or embezzlement as low-cost cell phones and bicycles, or (in in rural areas) dozens of chickens or ducks, a pig, a goat, or a cow, or a cubic meter of firewood or boards, cost UAH 4,500 or less. According to online sources, alcohol, cheese, chocolate, clothes, and shoes are the items most often stolen from stores.
People committing petty theft of another’s property often have no job and no money, and therefore cannot be sentenced to correctional labor or fined. The only possible penalties available in this case are administrative arrest (which the law does not allow to impose on pregnant women, women with children under the age of 12, persons under the age of 18, and persons with disabilities of the first and second groups) and community service (which the law, again, does not allow to impose on persons with disabilities of the first or second groups, pregnant women, women over the age of 55, and men over the age of 60).
Therefore, the implementation of the provisions of the draft law in practice will lead to extraordinary spreading of theft, fraud, misappropriation, or embezzlement of other people’s property valued up to UAH 4,542, which will be committed mainly by minors, persons with disabilities, and the elderly – both on their own initiative and as a result of incitement by others (based on the principle of “you go steal, they will do nothing to you”).
Such a situation, on the one hand, will contribute to increased social immorality, and on the other hand, will create conditions for extrajudicial retributions initiated by property owners who will be systematically robbed, up to the murder of particularly malicious thieves.
At the same time, in cases of robbery (Article 186 of the Criminal Code of Ukraine), criminal responsibility occurs and will be imposed regardless of size. In this context, it should be recalled that robbery is an open theft of another’s property, i.e., one committed in the presence of the owner or other persons who are aware of the theft, while violence or threats of violence are not a mandatory element. For example, if an offender, realizing that he/she has been exposed, flees the store with a stolen bottle of vodka, the act of theft turns into robbery. If an offender leaves unnoticed, the act is classified as theft. Although theft and robbery are very similar in terms of their danger, in the case of theft, a person can serve a maximum of 5 days of arrest, while in the case of robbery, a person could be sentenced to 4 years of imprisonment, which is almost 300 times longer than the duration of said arrest.
Finally, in cases of criminally punishable theft, fraud, misappropriation, or embezzlement of another’s property, there are currently opportunities under the criminal procedure law to solve the relevant offenses, including by resorting to certain covert investigative (detective) actions that do not exist under the Code of Administrative Offenses.
Thus, the issue should be addressed comprehensively, predicting possible consequences. In particular, it is necessary to:
– specify the amount of theft, fraud, misappropriation, or embezzlement of another’s property considered as petty, providing that the value of the property does not exceed 0.5 TFIM (UAH 757) rather than by supplementing Article 51 of the Code of Administrative Offenses with a new part 2;
– provide for administrative responsibility for petty larceny via robbery of another’s property, the value of which, for example, does not exceed 0.1 TFIM (UAH 151.4) if committed without violence or threat of violence;
– revise the provisions of the Code of Administrative Offenses regarding the possibility of applying administrative arrest for petty theft of property against women with children aged 3 to 12, minors who have reached the age of 16, persons with disabilities of the second group, as well as of applying community service against women aged 55 to 60 and men aged 60 to 65;
– provide for the possibility of installment and deferral of fines, as well as the use of electronic monitoring as a new type of administrative penalty, in addition to improving the system of community service to make it more effective.
Interagency Working Group under the Prosecutor General’s Office approves the Action Plan for the development of law and order system
Event
On March 18, a meeting of the Interagency Working Group approved the draft Action Plan for the implementation of the Comprehensive Strategic Plan for the reform of law and order agencies as part of security and defense sector of Ukraine for 2023-2027.
CPLR’s position
The Action Plan contains a detailed list of measures (more than 130 pages) on the implementation of the Comprehensive Strategic Plan approved by the President’s Decree № 273/2023 of May 11, 2023. It sets out strategic priorities for the reform of law and order agencies according to the highest European standards.
These include measures aimed at increasing the efficiency of criminal proceedings, preventing and combating crime in communities, strengthening support for victims and witnesses, and developing and implementing technological solutions, including an electronic system of criminal proceedings. These are important steps towards building a modern and effective criminal justice system based on respect for individuals and protection of their rights and freedoms.
The content of the Plan concerns not only the institutional capacity of law and order agencies – i.e., unification of their legal status, introduction of common administrative practices, or the institute of detectives – but also criminal policy (for example, introduction of a consistent criminal policy and crime surveys that have proven their effectiveness in other countries), as well as criminal procedure legislation (e.g., strengthening the protection of participants in criminal proceedings, focus on the rights of a victim, alternative methods for resolving criminal disputes).
Currently, the Action Plan has only been approved by the Interagency Working Group, which has been working on its development since July 2023 (Prosecutor General’s Order № 189 of July 12, 2023). The Group also included representatives of the CPLR – specifically, Mykola Khavroniuk (director for research and development) and Yevhen Krapyvin (expert for criminal justice). The next stage is the Plan’s adoption by the Cabinet of Ministers of Ukraine; thus, the document is not publicly available at the moment.
The adoption of this document by the Government is part of the European integration reforms that Ukraine must implement on its path to full membership in the European Union. It is also a key document in the area of state policy on the development of law and order system, particularly taking into account the challenges caused by the russian federation’s armed aggression.
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