Responsibility for aiding draft evaders to flee abroad: what the law demands and how penalties are applied in practice.

Today, we hear the term "ukhilyant" daily from social media, law enforcement, and the media. Raids by military enlistment offices and the exposure of various schemes to evade mobilization have unfortunately become the norm. When these schemes involve the illegal transportation of conscripts abroad, both organizers and participants face criminal liability. At the request of UNN, lawyer and honored jurist of Ukraine Volodymyr Bohatyr analyzed recent judicial practices regarding the article of the Criminal Code that provides for liability for the illegal transportation of persons across state borders.

Criminal Liability - Imprisonment

The crime of illegally transporting 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 amendments—in 2011 and 2016—resulting in a more detailed disposition of the norm, the addition of qualifying features of the crime, and a traditional increase in penalties for its commission.

As of today, the essence 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, provision of means, or removal of obstacles. For this, the code stipulates an unconditional penalty 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 being illegally transported across the state border, or if it was committed against multiple persons, or repeatedly, or by prior agreement among a group of persons, or by an official using their official position, the offenders may face a sentence of five to seven years, along with the deprivation of the right to hold certain positions or engage in specific activities.

However, the most severe penalties are provided for such actions if they were committed by an organized group or motivated by selfish reasons. The court may impose a sentence of seven to nine years in places of deprivation of liberty, depriving the offender of the right to hold certain positions or engage in specific activities, and confiscating property.

As can be seen, the legislator believes that under any circumstances, a criminal cannot escape with a fine or community service but must serve time in prison. But what happens in practice?

Surge in Activity

The situation regarding the application of Article 332 of the Criminal Code in practice can be assessed based on reports of registered criminal offenses and the results of their pre-trial investigations conducted by the Office of the Prosecutor General. These reports are updated monthly, providing us with fresh and fairly detailed statistics on the state of official crime and the performance of law enforcement agencies.

From these reports, it is evident that prior to the restrictions on conscripts' right to leave the country due to the imposition of martial law, the number of registered criminal proceedings was quite low. 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, as there was no mobilization, were not related to evading military service. After the onset of the full-scale invasion, when citizens without legal grounds sought to leave the country, a corresponding shadow market for such services emerged, and the number of registered proceedings sharply increased: 1,225 entries in 2022, 2,301 in 2023, and 2,585 in the first three quarters of 2024. This indicates that the official "market" for illegal transportation of persons across the border has grown significantly! This can only be explained by an influx of new "clients"—those seeking to evade service.

When comparing registered proceedings to announced suspicions, a trend towards increased activity among law enforcement can be observed. In 2019, suspicion was announced in only 29% of cases of entries into the Unified Register of Pre-Trial Investigations, indicating a lack of interest from law enforcement in this area. However, in 2023, this figure rose to 67.2%.

It is also clear that the number of cases sent to court with an indictment has significantly increased. For instance, in the relatively calm year of 2021, 53 cases were sent. In contrast, over the nine months of the current year, 1,146 cases have been referred to court. It can be predicted that by the end of the year, this number will be no less than 1,500.

In other words, the burden on the courts for criminal cases under Article 332 has increased by 28 times, or approximately 2,700%.

Court Proceedings

The quality of the consideration of criminal cases in the courts of Ukraine can be evaluated 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 observe general trends.

The UGRCD contains 776 records of verdicts under Article 332 since 2019. Notably, while there were only 30 verdicts in 2019, the current year has already seen 254 entries in the register. A significant jump is typically observed in 2022.

Overall, from the introduction of martial law to the present day, there have been 648 verdicts under Article 332. Regionally, the top three areas with the highest number of convictions for illegal transportation of persons across the border are Zakarpattia (148 convictions), Chernivtsi (135), and Odesa (116).

Additionally, Lviv (78), Volyn (37), Vinnytsia (22), Kyiv (20), and Ivano-Frankivsk (19) regions also stand out. In the remaining regions, during the full-scale invasion period, there were 10 or fewer convictions. In six regions, there were no convictions at all. For understandable reasons, these include the Autonomous Republic of Crimea, Sevastopol, Donetsk, Luhansk regions, as well as Kherson and Kirovohrad regions.

When comparing these data with the number of cases referred by the prosecution to the court, it can be noted that the percentage of proceedings brought to conclusion has significantly decreased. This year, law enforcement referred 1,146 indictments to the court, while the courts delivered only 254 verdicts (some of which have not yet come into legal force).

The consequence of such arrangements is softer penalties. In at least 493 verdicts (over 50%), conditional release from serving a sentence with the obligation to periodically report to the authorities is applied. This indicates a prevalence of the practice of assigning probationary periods.

In other words, where the legislator prefers to imprison a criminal, in practice, there is a more lenient approach, often allowing them to remain free.

This situation, combined with numerous cases of exposing corrupt officials among the Military Medical Commission, Military Medical Boards, and Military Enlistment Offices, indicates that society increasingly rejects the existing approaches to legal regulation in the field of mobilization policy.