The war in Ukraine brought fundamental changes to all areas of our life, including legislation related to persons serving sentences and accused of criminal crimes. On May 17, Volodymyr Zelenskyi signed the law “On Amendments to the Criminal and Criminal Procedural Codes of Ukraine and other legislative acts of Ukraine regarding the introduction of the institution of conditional early release of persons from serving a sentence for their direct participation in the defense of the country, the protection of its independence and territorial integrity.” According to the law, convicts had the opportunity to be released on parole to serve in the army on a contract basis. This opportunity can be used only by persons convicted of minor crimes. Prisoners for crimes against national security, corruption, intentional murder of two or more people, rape or sexual violence will not be able to mobilize.
In addition, on May 16, the head of the Verkhovna Rada Committee on Law Enforcement, Serhii Ionushas, together with a group of people’s deputies, registered draft law No. 11265 on amendments to the Criminal and Criminal Procedure Codes to improve the procedure for conducting criminal proceedings under martial law. It proposes to release from further serving of the sentence convicted persons who did not serve it as a result of the armed aggression of the Russian Federation or the temporary occupation of certain territories of Ukraine. This does not apply to persons sentenced to life imprisonment or for committing criminal offenses against the foundations of national security of Ukraine, torture, against peace, security of humanity and international legal order
On May 1 of this year, the law “On Amendments to the Criminal Procedure Code of Ukraine regarding the improvement of the procedure for conducting criminal proceedings under martial law” entered into force, in which the provisions of Part 1 of Art. 335 of the CPC “Suspension of court proceedings” is set out in a new version. From now on, if the accused is called up for military service during mobilization, the court will stop the proceedings until he is released from military service.
How many and which criminal proceedings were stopped due to the mobilization of the accused
There are no official statistics on such cases in the State Judicial Administration of Ukraine, but NGL.media’s analysis of the court register for the years 2022-2024 shows that during this period, the consideration of about 11,000 criminal cases was stopped indefinitely due to the mobilization of the accused. The most common of them are indicated in the infographic.
The analysis of stopped criminal cases shows that the vast majority of them are thefts, drugs and traffic accidents with serious consequences. From the entire array of cases stopped due to mobilization, 400 arbitrarily selected ones were analyzed in detail, as a result of which it was found that about 25% of them had proceedings for crimes committed by persons who had already acquired the status of a military serviceman. Of the remaining cases, in 95% of cases the courts stopped the proceedings after the mobilization of the accused, while in only 5% of the cases the court refused to do so and its decision is not subject to appeal.
Almost half of the analyzed cases refer to criminal proceedings initiated in 2010-2020. During the service of the accused, the statute of limitations continues to accrue, and therefore, probably, they may be released from criminal liability altogether due to the fact that the statute of limitations has expired. It is noteworthy that in most cases the defendants, who mobilized, try to delay the trial of cases for quite understandable reasons – they try to avoid punishment.
Many stopped cases also concern corruption crimes – abuse of official position, appropriation or embezzlement of property, bribery, etc. That is, some officials or judges also try to avoid punishment for crimes, for this purpose they found a legislative loophole and decided to mobilize. So, for example, Svitlana Kolegayeva, judge of the Desnyan Court of Kyiv, committed an accident while in an inebriated state. The court found her guilty, fined her and deprived her of her driving license for a year. At the same time, a complaint was filed against her to the VRP with a demand to dismiss her from her position. Kolegaeva asked the VRP to suspend the consideration of the disciplinary case against her for the duration of the martial law, because she decided to mobilize. Despite the fact that the judge did not provide evidence that she actually mobilized, the members of the Third Disciplinary Chamber of the Ukrainian People’s Republic of Ukraine unanimously granted her request. Kolegaeva will retain her status as a judge and will continue to receive a salary (in 2023, she earned UAH 1.3 million).
Another example. The case of ex-deputy of the Khmelnytskyi Regional Council Mykola Kharkavy, whose actions were qualified as fraud and incitement to bribery, was stopped due to his service as the commander of the security of the Military Commissariat. The higher anti-corruption court convicted him, sentencing him to 7 years of imprisonment with confiscation of property. However, a few months later, Kharkaviy was mobilized to the Armed Forces of Ukraine and the panel of judges stopped the criminal proceedings pending his release from service.
A case of rape of a minor was heard in the Brovary City and District Court of the Kyiv Region. The accused, together with a group of accomplices, used physical violence against a minor girl and raped her, including in an unnatural way. However, the court stopped the proceedings due to the mobilization of the accused, and how media reports, he serves as the deputy commander of the military unit for moral and psychological support.
On April 4 of this year, during the court session, the judge of the Makariv district court of the Kyiv region, Oleksiy Tandyr, who was accused in a fatal road accident, asked to be released from custody so that he could mobilize. In confirmation of his words, he provided a letter from the 163rd battalion of ground defense from Nizhyn about the readiness to hire him as the deputy commander of the company for moral and psychological support. Tandyr was threatened with long imprisonment, consideration of his case could be stopped until demobilization, which is not known when it will take place, and during this time, the statute of limitations of the case would expire. As a result, the court kept him in the SIZO and continued the consideration of the case on its merits. However, this does not always happen – in this case, Tandyr’s case was not closed only thanks to the publicity of the case in the mass media, as well as a wide resonance in society.
Possible consequences of the introduction of the institution of conditional early release of persons from serving a sentence for their participation in the defense of the country, the court stopping the proceedings against the accused, called up during mobilization, as well as a legislative initiative to release from further serving the sentence of convicted persons who have not served their sentence as a result of armed aggression the Russian Federation or the temporary occupation of certain territories of Ukraine
Undoubtedly, new laws and legislative initiatives are designed to mobilize as many people as possible, and this is extremely important for our country in today’s conditions. However, the question arises, will the convicted or accused go to defend their country at all? It is likely that many of them will want to remain in detention or will look for options to return home as soon as possible after mobilization.
What to expect next? You can see that Overton’s window is opening wider and wider – more and more similar laws are being issued. The public is told that they contribute to the involvement of even more people during mobilization, but its consequences are not comprehensively analyzed. People are usually told “no” at first, and then it turns out that “yes, but later”. In this case, “no” means promises that there will be no surge in crime and any abuses, everything is done only for the good of society. However, “yes, but later” may come later, that is, it will turn out that not everything is so clear-cut, there will be negative consequences, but it will be too late to change something, and people will be humbled by this.
It is seen that the results of innovations can lead to such extremely dangerous precedents.
- Even greater corruption risks.
Seizing the opportunity, with the help of officials, offenders will resolve their issues by mobilizing in order to prolong the consideration of criminal proceedings and, accordingly, expire the terms of their prosecution. That is, under the slogan of “intensification of mobilization”, the possibility of actually legalizing the avoidance of the court-determined punishment in the form of deprivation of liberty appeared. Then, thanks to corruption schemes, it will be possible to avoid military service altogether and continue with your illegal activities.
- Increase in the level of crime.
As the legislators stated, the resource of prisoners for mobilization is 15-20 thousand people. At the same time, it is assumed that they will be able to get to the front only after the consent and the corresponding petition of the military to the court. At the same time, the legislation does not define the mechanism for such a process. In addition, the court imposes on the person released from serving the sentence the obligation to immediately, but no later than 24 hours after the court decision enters into force, arrive accompanied by the National Guard of Ukraine at the TCC to conclude a contract and undergo military service. Then it is assumed that the person under escort should be transported to the military unit, where he will serve. The unit should not be ordinary, but specialized, its commander, in addition to direct combat tasks, should carry out administrative supervision of the new addition. However, the law does not define what these special units will be, how the commander will supervise.
There is another interesting point. According to the law, no leave is provided for those released from serving their sentence, but based on the opinion of the VLK they can receive it for treatment after an injury, contusion, trauma or mutilation. In addition to the corruption risks in this case, it is not known who will supervise them during treatment, who will return them to the unit. All this can lead to the fact that this category of persons can simply escape and continue to commit crimes.
- Demoralization of society.
Our authorities have repeatedly emphasized the rise of the fighting spirit of Ukrainians and the prevention of their demoralization in wartime conditions. For example, Mykhailo Podolyak, adviser to the head of the Office of the President, stated:
“The state cannot afford anything demoralized in society.”
Nevertheless, thanks to the new laws, even so little faith in justice is killed in people, which leads to their even greater demoralization, which is affected by other factors without this. As you know, a demoralized society is much more inert towards life, has no desire to resist the enemy. Demoralized people become less confident, live in constant stress, a sense of hopelessness, which ultimately leads to nervous diseases and increased mortality. Demoralization is a real psychological war at the level of the subconscious and emotions. It takes place on an invisible front, where the survival of the people is at stake.
