Weekly analytics for 26 July — 1 August

Unauthorized abandonment of service duty station by a military serviceman: why make it so difficult?

Event

On July 14, the recently adopted Law “On Amendments to the Criminal and Criminal Procedural Codes of Ukraine on Eliminating Conflicts in the Punishment of Criminal Offenses” was submitted for the President of Ukraine for signature.

In particular, it envisions that unauthorized abandonment of a military unit or duty station, or failure to report for military service on time without valid reasons, if committed under martial law, carries responsibility under Part 5 of Art. 407 of the Criminal Code of Ukraine (CC) only in case the duration of these actions exceeds three days. The current version of Part 5 of Art. 407 of the CC provides the stated actions are punished regardless of the duration (that is, for example, unauthorized abandonment of service duty station even for several hours is also punishable by imprisonment for a term of 5 to 10 years). 

CPLR’s expert assessment

In other words, partial decriminalization is happening: if the duration of unauthorized abandonment of service duty station or failure to appear for service on time does not exceed three days, it will be punished under Art. 172-11 of the Code of Ukraine on Administrative Offenses as a misconduct – i.e., by detention for up to 10 days.

This step by the legislature deserves favorable review. However, unfortunately, many other problems remain in this area.

Thus, both the current and the new laws provide for more than twenty options for unauthorized abandonment of service duty station or failure to appear for service on time (Table 1). These options depend simultaneously on several criteria such as:
1) duration of abandonment,
2) the presence or absence of an intent to permanently evade military service,
3) the status of a military serviceman,
4) time,
5) circumstances, and
6) presence of valid reasons.

In the presence of certain criteria, the legal consequences of an offense are very different.
Thus, in case of committing an offense in form of failure to appear for service on time, the presence of valid reasons is grounds for releasing a serviceman from legal responsibility in general. However, no reasons for such offense – regardless of being extremely important and valid – are taken into account if it is committed in the form of unauthorized abandonment of service duty station. Moreover, in the case of a conviction for unauthorized abandonment of service duty station, the court can neither impose a basic punishment below the lowest threshold provided for by the law nor switch to another, milder type of basic punishment not stated in the law, nor can it make a decision on relieving from serving the punishment with a probationary sentence.

The presence of the intent to permanently abandon military service means that, regardless of the duration of evasion, a serviceman must be imprisoned for at least a 2 year period even in peacetime, and from 5 to 12 years in wartime.

It is also difficult to explain why a conscripted serviceman can be punished with imprisonment for up to 3 years for failure to appear for service on time from 4 to 10 days, while a different serviceman would be only fined or arrested for up to 10 days for the same actions.

Unauthorized abandonment of service duty station by a mobilized serviceman in conditions of a special period and even under martial law for a period of up to 72 hours could be punished with a relatively small fine or arrest for a period from 10 to 15 days, while punishment for the same actions for a period of more than 72 hours carries much greater severity, with deprivation of liberty for a period from 5 to 10 years (i.e., approximately 1,825 to 3,650 days). It is obvious that such an approach does not comply with the principle of proportionality.

Finally, such a large number of options for the same action contradicts the principle of legal certainty and creates major difficulties in the legal qualification and sentencing decisions (penalties).

Table. 1. Administrative and criminal responsibility of a military serviceman for unauthorized abandonment of military unit or service duty station / failure to appear on time without valid reasons for service

Thus, the number of criteria for differentiating criminal responsibility for a military serviceman’s unauthorized absence at the service duty station (unauthorized abandonment of service duty station or failure to appear for service on time) should be reduced.

The difference in the extent of punishment should depend only on the circumstances and duration of absence in the service duty station. Under such approach, by taking into account the principle of proportionality in improving the responsibility for stated offenses, it should be provided that the unauthorized absence of a military serviceman at the duty station for a duration of:

1) up to one day (in peacetime or during a special period) is an administrative offense (arrest for up to 15 days);

2) up to one day (in wartime) is a criminal offense (arrest for up to 6 months);

3) up to one day (in combat situation) is a misdemeanor (deprivation of liberty for up to 5 years), while unauthorized retreat from battlefield during combat is a serious crime/felony (deprivation of liberty for up to 10 years);

4) more than one day and up to one month (in peacetime or during a special period) is a misdemeanor;

5) more than one day and up to one month (in wartime) is a serious crime/felony;

6) more than a month (in peacetime or during a special period) is a serious crime/felony;

7) more than a month (in wartime) is a particularly serious crime/felony (deprivation of liberty for more than 10 years).

As a rule, in judicial practice, it is the duration of the evasion (i.e., when a military serviceman throws away his military uniform, then pretends to be someone else, hides, moves from place to place, flees abroad, etc.) that serves as evidence of the intent to permanently abandon military service.

Valid reasons (both for unauthorized abandonment of service duty station and failure to appear for service on time) should be taken into account when imposing a sentence or relief from punishment, but they should not be grounds for relief from criminal responsibility altogether. This has to do with military discipline, the state of which, according to the law, is defined by the ability of duty personnel to fully and timely perform the assigned tasks, particularly in combat. Creating exceptions undermines military discipline, and therefore military law and order and the state’s security in general – especially in wartime.

Reinstatement of declarations: fast, but not without flaws

Event

On July 26, the draft Law № 9534 on amendments to certain laws of Ukraine on defining the procedure for submitting declarations by persons authorized to perform state or local self-government functions under martial law was registered the Verkhovna Rada of Ukraine.

Among others, the draft law provides for:

– reinstatement of declarations for the majority of declarants and the obligation to report on property and income for 2021 and 2022 within 90 days from the date this Law enters into force;

– special procedure for submitting declarations by persons exercising their powers in the territories of active hostilities;

– partial restoration of public access to information specified in declarations.

CPLR’s expert assessment

Submission of a declaration by a person authorized to perform state or local self-government functions (declaration), provided for in Art. 45 of the Law of Ukraine “On Corruption Prevention”, was suspended due to the introduction of martial law in Ukraine.

The public started to discuss the possibility of its reinstatement in the summer of 2022, when the security situation in northern regions and in Kyiv stabilized and Ukraine was granted the status of a candidate for membership in the European Union. Moreover, numerous corruption scandals, which have become more frequent recently, only underscore the importance of reinstatement of declarations for the full functioning of the system of preventing and countering corruption. However, in our view, the draft law No. 9534 contains several serious shortcomings.

First. According to the current version of Article 11 of the Law “On Corruption Prevention”, the powers of the NACP include the provision of interpretations regarding the application of legislation on ethical behavior, prevention and resolution of conflicts of interest, receiving gifts, combining the functions of the state or local self-government with other types of activities, joint work of relatives, protection of whistleblowers, etc. The implementation of such powers is primarily aimed at the unified application of anti-corruption legislation’s provisions by all entities to which it applies.

However, draft law 9534 proposes to significantly limit these powers of the NACP and allow it to provide interpretations only related to prevention of receiving an undue benefit or gift and prevention of conflicts of interest. There are no arguments in the explanatory note regarding the need for such amendments.

In practice, the most requested interpretations involve filling out the declarations. The law cannot predict all life situations. Frequently, the declarants themselves and the employees of authorized units (authorized persons) for the prevention and detection of corruption find answers in these interpretations when resolving complex issues related to the declaration. Their absence will lead to an increase in the number of errors and inaccuracies in declarations.

According to Art. 46 of the Law “On Judiciary and Status of Judges”, the Plenum of the Supreme Court can promote the unified application of legal norms by summarizing the practice of application of laws. However, the Court summarizes only judicial practice – i.e., cases that are being appealed in courts.

The last time when judicial practice regarding corruption and corruption-related offenses was summarized was in 1998, with update in 2000. Since then, new anti-corruption laws have been adopted in Ukraine several times, in addition to the new Criminal and Criminal Procedure Codes, Code on Administrative Offenses, etc. Existing summaries of judicial practice are outdated. Furthermore, most citizens who are subject to anti-corruption legislation seek to comply with its rules and regulations, avoiding offenses and court proceedings.

What should be done:remove from draft law 9534 provisions on amendments to Art. 11 of the Law “On Corruption Prevention”, as such that could lead to numerous unintended violations of legislation concerning measures of financial control over persons authorized to perform state or local self-government functions. 

Second. Until 2022, Ukraine constantly sent its representatives to other states to participate in international peacekeeping and security operations as part of national contingents or national personnel, while hostilities have been taking place on the territory of Ukraine since 2014. Therefore, Article 45 of the Law “On Corruption Prevention” already provided for an exception to general rules on declarations for persons who objectively do not have the opportunity to submit a declaration within the time limits set by the law (by April 1).

Draft Law 9534 proposes to supplement Article 45 with part 7 providing for special deadlines for submitting declarations for such persons, with including (as a footnote to this part) in this category, in particular, the declarants who, in order to exercise their official powers, are located in the territories where active hostilities are taking place, the list of which determined in accordance with the procedure established by law.

The list of territories on which hostilities are taking (or took) place or the territories temporarily occupied by the Russian Federation is determined by the order of the Ministry on Reintegration of Temporarily Occupied Territories in Ukraine. According to the Government’s Resolution of December 6, 2022 № 1364, the Ministry of Reintegration is empowered to provide interpretations on the formulation and application of this list. Thus, the ministry’s powers would be expanded without justification, as it could essentially determine whether a person is required to submit a declaration within the time limits specified by anti-corruption legislation.

Furthermore, in certain territories included in the list, it is objectively possible to submit a declaration within the general period. For example, this applies to Kharkiv and Odesa urban territorial communities, where state and local self-government bodies continue functioning and officials have access to the Internet.

Therefore, it is not clear from these provisions what official powers give grounds for submitting a declaration within a special period, while the ministry is assigned with improper functions.

What should be done:specify what exactly official powers give grounds for submitting a declaration within a special period, or determine the list of officials who submit declarations on a general basis.

Third. According to Part 2 of Art. 46 of the Law “On Corruption Prevention”, information regarding the object of declaration, which is in possession or use of the declarant (is not his/her property), is reported if such an object was in possession or use as of the last day of the reporting period or for not less than half of the days during the reporting period.

Draft law 9534 proposes to expand the criteria according to which such objects must be reported in the declarations, adding the condition that “the market value of using such an object (regardless of whether the actual use is carried out on a paid or free basis)” must exceed 50 non-taxable minimum of income established for able-bodied persons as of January 1 of the reporting year (UAH 134,200 in 2023).

For example, if the declarant and his/her family live free of charge in an apartment owned by the parents of one of the spouses, he/she must independently establish the market value of the rent of such housing as of January 1, multiply it by 12 (annual value), and report this amount in the declaration. In practice, this may lead to having an honest declarant subjected to disciplinary or administrative responsibility for false declaration if he/she mistakenly increases the value of the use of the property.

The consequence of bringing a person to responsibility for corruption or a corruption-related offense is the entry of information regarding the person into the Unified State Register of persons who committed corruption or a corruption-related offense. This fact is taken into account, for example, during promotion or when appointing a person to a supervisory board of an enterprise.

What should be done:do not amend Part 2 of Art. 46 of the Law “On Corruption Prevention”.

 Fourth. Draft Law 9543 proposes to supplement Art. 47 of the Law “On Corruption Prevention” with part 3, which mandates the NACP to provide the declarants with access to information contained in public electronic registers regarding them and members of their family.

According to the Law “On Public Electronic Registers”, such registers contain information, in particular, regarding:

– individuals, legal entities, and associations of individuals and/or legal entities;

– land and land plots with real estate objects located on them;

– certificates, licenses, and other permit documents;

– movable property that, according to law, is an object of state accounting;

– property and non-property rights, their restrictions, and burdens;

– construction objects and completed construction objects.

In practice, the integration of this information regarding the declarant into the Register of declarations can genuinely simplify the process of filling out the declarations.

However, opening access to information regarding family members will contradict Art. 32 of the Constitution of Ukraine, which guarantees the inviolability of personal and family life and gives citizens the right to get acquainted with information about themselves.

Apart from dishonest declarants who deliberately use the cover-up option of “family member did not provide information”, there are families in conflict, when one of the spouses is forced to hide from their partner due to the risk of being subjected to psychological or physical violence. Creating an opportunity to obtain information regarding a family member from the registers can carry added risks for the health and life of such a person.

What should be done:remove from the draft law the provisions that allow the declarant to obtain information regarding family members from public electronic registers. 

Fifth. The current legislation provides for the declarant’s obligation to report on significant changes in property status in the event of receiving income, purchasing property, or spending more than 50 non-taxable minimum incomes established for able-bodied persons as of January 1 of the corresponding year (UAH 134,200 in 2023).

Draft Law 9534 proposes to eliminate the reporting requirement regarding such changes if the income in the form of salary (cash support) or remuneration is received from the state or local budget at the principal place of work (service).

Given the fact that in the conditions of martial law, despite numerous facts of misuse of budget funds, a significant amount of information is already closed, this novelty will lead to further decrease in public oversight over the use of budget funds, particularly regarding payments to officials of state authorities and local self-governments.

Presumably, the authors of draft law 9534 tried to simplify the life of military servicemen who are stationed in a combat zone and, in some instances, could be required to submit notifications of significant changes almost every month. However, amendments to Art. 45 of the Law “On Corruption Prevention” already propose exempting such persons from the obligation to submit such reports, if the grounds for this arose during the period of martial law.

What should be done:do not amend Art. 52 of the Law “On Corruption Prevention” or extend such an amendment exclusively to the financial support of military servicemen who directly participate in hostilities.

Sixth. Draft Law 9534 proposes to supplement the transitional provisions of the Law “On Corruption Prevention” with paragraph 2-11, according to which the following data (in addition to confidential information) should be hidden in the open part of the Register of Declarations for the period of martial law:

1) information about localities where the objects of declaration, or the place of actual residence or registered place of residence, is located;

2) last names, first names, and patronymics of persons referenced in the declaration (except the declarants themselves).

The introduction of such changes is presumably motivated by the desire to ensure security of the declarants, particularly those who perform tasks in the interests of national security. However, such overly general wording will allow to hide from the public control objects of declaration located abroad.

In practice, closing the information about last names, first names, and patronymic of all persons referenced in the declarations will make it extremely difficult to establish corruption and collaborative ties between declarants and their family members, which poses a threat to state security.

What should be done:provide that the following information is not subject to display in public access:

1) information on localities in the event they were or currently are under temporary occupation;

2) last names, first names, and patronymics of minor persons referenced in the declarations.

Law to clarify certain provisions on the competitive selection of candidates for the position of a judge of the Constitutional Court of Ukraine was adopted

Event

On July 27,  the Verkhovna Rada of Ukraine adopted a law that clarifies the procedure for competitive selection of candidates for the position of a judge of the Constitutional Court and improving the functioning of an Advisory Group of Experts to assist in the evaluation of candidates. Previously, the CPLR experts have already analyzed the voted draft law № 9322 (read the material here).

Legal assessment

The CPLR supports the adoption of draft law № 9322 by the Verkhovna Rada of Ukraine. The parliamentary approval of this draft law reflects Ukraine’s unwavering commitment to the principles of democracy and European values. We believe that the clarification of the procedure for competitive selection of candidates for the position of a judge of the Constitutional Court is a step towards increasing the transparency and capacity of this important process.

However, it is worth noting that ensuring that the real competitive selection procedure is crucial for the democratic development of the state and ensuring the smooth operation of the Constitutional Court. It is important that the competitive selection procedure should take place not only on paper, but in real life and be implemented in the near future to fill the vacant positions of judges of the Constitutional Court of Ukraine (there are currently 5 vacancies: 3 vacancies under the parliamentary quota and 2 from the Congress of Judges).

The CPLR appeals to the appointees of the Advisory Group of Experts (the President of Ukraine, the Verkhovna Rada of Ukraine, the Congress of Judges of Ukraine, the Cabinet of Ministers of Ukraine on the proposal of the European Commission for Democracy through Law and on the proposals of international organizations that have been providing international technical assistance to Ukraine in the areas of constitutional reform, rule of law, human rights protection and/or prevention and counteraction to corruption over the past five years) to make efforts to appoint the members of the Advisory Group of Experts in a timely manner.

We believe, in particular, that today’s parliament will demonstrate the effective exercise of its personnel powers to appoint judges of the Constitutional Court during the war.