Liability for smuggling fugitives abroad: what the law wants and how it is punished in practice

Today, we hear the word "evader" every day on social media, from law enforcement and the media. Unfortunately, raids by the military commissariats and the exposure of various mobilization evasion schemes have become the norm. When these schemes involve the illegal transportation of persons liable for military service abroad, the organizers and participants of the schemes face criminal liability. At the request of UNN , Volodymyr Bogatyr, a lawyer and honored lawyer of Ukraine, analyzed the recent case law on the article of the Criminal Code that provides for liability for illegal transportation of persons across the state border. 

Criminal liability - imprisonment

As of today, the offense, in addition to illegal transportation of persons across the state border of Ukraine, also includes organizing the process, directing such actions or facilitating their commission by giving advice, instructions, providing means or removing obstacles. For this, the Code provides for mandatory liability 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 a 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 his or her official position, 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 committed for mercenary motives. The court may send the offender to prison for a term of seven to nine years, deprive him or her of the right to hold certain positions or engage in certain activities, and confiscate property.

As you can see, the legislator believes that under any circumstances, a criminal cannot get off with a fine or community service, but must be imprisoned. But what happens in practice?

A surge in activity

The situation with the application of Art. 332 of the Criminal Code in practice can be assessed by reports on registered criminal offenses and the results of their pre-trial investigation, which are maintained by the Office of the Prosecutor General. They are updated on a monthly basis, so we always have up-to-date and quite detailed statistics on the state of official crime and the quality of law enforcement.

They show that before the restriction of the right of persons liable for military service to travel abroad due to the introduction of martial law, the number of registered criminal proceedings was quite low. For example, in 2019, there were only 252 entries in the Unified Register of Pre-trial Investigations, and in 2021, there were 327. It is clear that these offenses, since there was no mobilization, were not related to military service evasion. After the start of the full-scale invasion, when citizens who did not have legal grounds but wanted to go abroad formed a corresponding shadow market for offers, the curve of registered proceedings went up sharply: 1225 records in 2022, 2301 in 2023, and 2585 in the first three quarters of 2024. That is, the "market" for illegal trafficking of persons across the border has officially grown by an order of magnitude! And this can only be explained by the influx of new "clients" - fugitives.

If we compare registered proceedings and notices of suspicion, we can see a tendency to intensify the work of law enforcement. For example, in 2019, suspicions were served in only 29% of cases of entering information into the Unified Register of Pre-trial Investigations, which rather indicates that law enforcement officers are not interested in working in this area. But in 2023, this figure rose to 67.2%.

In other words, the workload of the court in criminal cases under Article 332 of the Criminal Code increased 28 times, or by about 2.7 thousand percent.

It is clear that the number of cases in which no decision was made to refer to court or close during the reporting period is also growing.

Court proceedings

And the quality of criminal cases in Ukrainian courts can be judged on the basis of 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 USRPTI contains 776 records of verdicts under Art. 332 of the CC starting from 2019. At the same time, if in 2019 there were only 30 of them, then this year 254 verdicts have already been entered into the register. A noticeable jump is usually observed in 2022.

In addition to these, Lviv (78), Volyn (37), Vinnytsia (22), Kyiv (20), and Ivano-Frankivsk (19) regions also stood out. In the rest of the regions, there were 10 or fewer verdicts during the full-scale invasion. Six regions have zero sentences at all. For obvious reasons, these are the Autonomous Republic of Crimea, Sevastopol, Donetsk and Luhansk regions, and in addition to them, Kherson and Kirovohrad regions.

If we compare this data with the number of cases brought to court by the prosecution, we can see that the rate of proceedings brought to a conclusion has dropped significantly. Thus, this year, law enforcement officers submitted 1146 indictments to the court, and the courts passed only 254 verdicts (some of which have not yet entered into force).

349 verdicts (more than 40% of all proceedings) contain the phrase "approve the plea agreement", which indicates that plea agreements are quite common in this category of cases. This is a voluntary agreement between the prosecutor and the suspect or accused, which stipulates the terms of liability.

Such arrangements result in lighter sentences. In at least 493 sentences (over 50%), a conditional release from serving a sentence with the obligation to periodically report to the authorities was applied. This demonstrates the widespread use of probation.

In other words, where the legislator prefers to imprison a criminal, in practice, he is treated loyally and often left free.