Today, from social networks, law enforcement, and the media, we hear the word "draft dodger" every day. TCC raids and the exposure of various schemes to evade mobilization, unfortunately, have become the norm. When these schemes are related to the illegal transportation of conscripts abroad, criminal liability arises for the organizers and participants of the schemes. At the request of UNN, lawyer and Honored Lawyer of Ukraine Volodymyr Bohatyr analyzed the judicial practice of recent years regarding the article of the Criminal Code that provides for liability for illegal transportation of persons across the state border.
Criminal liability – imprisonment
The crime of illegal transportation of persons across the state border of Ukraine has existed in the current Criminal Code of Ukraine since its adoption in 2001. The relevant Article 332 has undergone only two changes – in 2011 and 2016, as a result of which the disposition of the norm was detailed, qualifying signs of the crime were added, and responsibility for its commission was traditionally strengthened.
As of today, the content of the offense, in addition to the illegal transportation of persons across the state border of Ukraine, also includes organizing the process, directing such actions, or facilitating their commission through advice, instructions, providing means, or removing obstacles. For this, the code provides for an unconditional penalty in the form of imprisonment for a term of three to five years.
If the crime was committed in a manner dangerous to the life or health of the person illegally transported across the state border, or committed against several persons, or repeatedly, or by prior conspiracy by a group of persons, or by an official using their official position, then the offenders face five to seven years with deprivation of the right to hold certain positions or engage in certain activities.
However, the most severe punishment is provided for such actions if they were committed by an organized group or for mercenary motives. The court can send them to places of detention for a term of seven to nine years, deprive them of the right to hold certain positions or engage in certain activities, and confiscate property.
As can be seen, the legislator believes that under no circumstances can a criminal get away with a fine or community service; they must go to prison. But what happens in practice?
Surge in activity
The situation with the application of Article 332 of the Criminal Code in practice can be assessed based on reports on registered criminal offenses and the results of their pre-trial investigation, which are maintained by the Prosecutor General's Office. They are updated monthly, so we always have fresh and quite detailed statistics on the state of official crime and the quality of law enforcement work.
From these, it can be seen that until the restriction of conscripts' right to travel abroad due to the introduction of martial law, the number of registered criminal proceedings was quite low. Thus, in 2019, there were only 252 entries in the Unified Register of Pre-trial Investigations, and in 2021 - 327. It is clear that these offenses, since there was no mobilization, were not related to evasion of military service. After the start of the full-scale invasion, when citizens who had no legal grounds but wanted to go abroad formed a corresponding shadow market of offers, the curve of registered proceedings sharply increased: 1225 entries in 2022, 2301 in 2023, and 2585 in the first three quarters of 2024. That is, officially, the "market" of illegal transportation of persons across the border has increased by an order of magnitude! And this can only be explained by the influx of new "clients" - draft dodgers.
If we compare the registered proceedings and the announced suspicions, we can notice a tendency towards increased activity of law enforcement officers. Thus, in 2019, suspicion was announced in only 29% of cases of entering information into the Unified Register of Pre-trial Investigations, which rather indicates the disinterest of law enforcement officers in working in this area. But in 2023, this figure increased to 67.2%.
It is clear that the number of cases transferred to court with an indictment has also significantly increased. For example, in the relatively calm year of 2021, 53 proceedings were transferred. And in the nine months of the current year - 1146. It can be predicted that by the end of the year this figure will be no less than 1.5 thousand.
In other words, the burden on the court for criminal cases under Article 332 of the Criminal Code has increased 28 times, or by about 2,700%.
It is clear that the number of cases for which no decision was made to transfer to court or close during the reporting period is also growing.
Judicial review
Conclusions about the quality of criminal case review in Ukrainian courts can be drawn based on data from the Unified State Register of Court Decisions. It is clear that this register may not reflect all verdicts, but its records are sufficient to see general trends.
Thus, the Unified State Register of Court Decisions contains 776 records of verdicts under Article 332 of the Criminal Code, starting from 2019. At the same time, if in 2019 there were only 30, then for the current year, 254 verdicts have already been entered into the register. A noticeable jump is observed, of course, in 2022.
In total, since the introduction of martial law until today, 648 verdicts have been rendered under Article 332 of the Criminal Code. If we take a regional breakdown, the TOP-3 regions where the most people involved in illegal transportation of people abroad were convicted are Zakarpattia (148 verdicts), Chernivtsi (135), and Odesa (116).
In addition, Lviv (78), Volyn (37), Vinnytsia (22), Kyiv (20), and Ivano-Frankivsk (19) regions also stood out. In the remaining regions, during the full-scale invasion, there were 10 or fewer verdicts. In six regions, there were no verdicts at all. For understandable reasons, these are the Autonomous Republic of Crimea, Sevastopol, Donetsk, Luhansk regions, and in addition - also Kherson and Kirovohrad regions.
If we compare these data with the number of cases transferred by the prosecution to the court, we can notice that the indicator of proceedings brought to an end has significantly decreased. Thus, this year law enforcement officers transferred 1146 indictments to the court, and the courts rendered only 254 verdicts (some of which have not yet entered into force).
349 verdicts (over 40% of all proceedings) contain the phrase "approve the plea agreement," which indicates a fairly common practice of concluding plea agreements in this category of cases. This refers to a voluntary agreement between the prosecutor and the suspect or accused, in which the terms of responsibility are agreed upon.
The result of such agreements is milder penalties. At least 493 verdicts (over 50%) apply conditional release from serving the sentence with the obligation to periodically report for registration with the authorities. And this indicates the widespread practice of imposing probationary periods.
In other words, where the legislator prefers to imprison the criminal, in practice they are treated leniently and more often left at large.
Such a situation, combined with numerous cases of exposing corrupt officials among the MSEC, VVK, and TCC employees, indicates that society increasingly does not accept the existing approaches to legal regulation of relations in the field of mobilization policy.
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