The Verkhovna Rada is not satisfied with the practice of courts, which, taking into account various circumstances, impose a milder sentence or a sentence with a probationary period on persons who evaded mobilization and persons who facilitated illegal diversion across the state border.
People's Deputy, Member of the Verkhovna Rada Committee on Law Enforcement Affairs Maksym Pavlyuk registered in the parliament bill 13014-1 on amendments to the Criminal Code.
In particular, the deputy proposes to establish in Article 69 of the Criminal Code, which currently allows courts to impose a milder punishment than provided for by law, that the court cannot, in the presence of several circumstances that mitigate the punishment and significantly reduce the severity of the offense, taking into account the identity of the perpetrator, impose a basic punishment lower than the lowest limit established in the sanction, or switch to another, milder type of basic punishment not specified in the sanction, if it concerns Articles 332 of the Criminal Code (illegal smuggling of persons across the state border) and 336 of the Criminal Code (evasion of conscription during mobilization).
Thus, courts will not be able to impose a more lenient sentence on evaders and persons who facilitated illegal diversion across the border, taking into account the circumstances.
Similar additions are proposed to be made to Article 75 of the Criminal Code, which regulates the possibility of exemption from serving a sentence with probation.
Let us remind you that currently, if the court concludes that the convict can be rehabilitated without serving a sentence, it may decide to release him from serving a sentence on probation.
Bill 13014-1 proposes that probationary sentences should not be applied to evaders and persons who facilitated illegal diversion across the border.
In addition, it is proposed to strengthen responsibility under Article 332 of the Criminal Code. Currently, under Part 1 of Article 332 of the Criminal Code, illegal smuggling of persons across the state border, organization of illegal smuggling of persons across the state border, management of such actions or facilitation of their commission by advice, instructions, provision of means or removal of obstacles are punishable by imprisonment for a term of 3 to 5 years.
The deputy proposes that such actions committed during a state of war or emergency be punishable by imprisonment for a term of 7 to 9 years with deprivation of the right to hold certain positions or engage in certain activities for a term of up to 3 years with confiscation of property.
At the same time, Maksym Pavlyuk suggests clarifying that illegal crossing of the state border of Ukraine should be understood as crossing the state border of persons:
- by any means outside the relevant checkpoints;
- at checkpoints, but without appropriate documents;
- at checkpoints, but with documents that contain inaccurate information about the person;
- at checkpoints, but without permission from the relevant authorities.
And crossing the state border outside the state border checkpoints should be understood as crossing the state border by a person:
- outside the location of the checkpoint;
- outside the place designated at the checkpoint for direct crossing of the state border;
- at the place designated at the checkpoint for direct crossing of the state border, but at a time when the checkpoint was not operational.
In his explanations, Maksym Pavlyuk cites a number of court decisions in which, when passing a sentence, judges mitigated the punishment of the guilty parties, applying the norms of the Criminal Code, guided by the aforementioned Articles 69, 75 of the Criminal Code.
"Thus, the punishments provided for in Article 332 of the Criminal Code of Ukraine, in the form of a fine, are mitigated and the sentence is released from probation," — adds the deputy.
A similar situation, according to him, exists with Article 336 of the Criminal Code regarding evasion of military service during mobilization.
He emphasized that "Such judicial practice of considering cases models negative behavior among persons subject to mobilization, military personnel, and negates the principle of the inevitability of fair punishment for committing offenses related to evasion of fair punishment for the illegal smuggling of persons across the state border of Ukraine."
"Based on the above, during the development of the draft Law, a unanimous opinion was approved on the need to make relevant amendments to the current legislation, since according to the rules of norm-setting, it is classically believed that it is the existing discrepancy in the practice of applying legislation by courts that gives rise to the justification for concluding a draft Law on amendments." – the MP concluded.
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