The Law on Strengthening Liability for Military Offenses: New Types of Punishments (Comments of Lawyers)

On May 9, the Verkhovna Rada adopted in the second reading draft law No. 10379 on strengthening responsibility for military offenses. The adopted law will be sent to the President of Ukraine for signature, after which it will enter into force.

IA “FAKT” asked the specialists of the “Repeshko and Partners” bar association to comment on the legislative innovations and their consequences.

What is the adopted draft law about?

The adopted draft law “On Amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine on Strengthening Liability for Military Offenses” amends Articles 210 and 210-1 of the Code of Ukraine on Administrative Offenses, which relate to violations of the rules of military accounting and legislation on defense, mobilization training and mobilization. This involves increasing fines for so-called evaders, but the main innovation is that fines can be issued in absentia. Also, if a conscript does not respond to a summons to the TCC, he can be entered in the register of debtors, and in case of non-payment of the fine, his accounts can be blocked.

Who will be fined and for what?

The adopted draft law will work together with the new law on mobilization, which will enter into force on May 18. They will be fined if the conscript did not update his data in the TCC, did not change them in electronic registers, did not appear on a summons or otherwise violated the mobilization rules, according to which conscripts must do all this by July 18 2024 year.

What amounts of fines are provided by the new law?

If currently conscripts are brought to administrative responsibility in the form of fines for from fifty (850 hryvnias) to one hundred (1700 hryvnias) of the non-taxable minimum income of citizens, after the entry into force of the law, a significant increase in fines is foreseen and three regimes of punishment are introduced – violation , repeat violation and violation during martial law.

Accordingly, fines under Art. 210, which relate to military accounting, will be as follows:

• in peacetime – from 3,400 to 5,100 hryvnias;
• in wartime (or repeated violation) – from 17,000 to 25,500 hryvnias.

According to Art. 210-1, for violation of the legislation on defense and mobilization in peacetime:

• for citizens – from 5,100 to 8,500 hryvnias;
• for officials and legal entities – from 17,000 to 34,000 hryvnias.

For avoiding mobilization in wartime:

• for citizens – from 17,000 to 25,500 hryvnias;
• for officials and legal entities – from 34,000 to 59,000 hryvnias.

Therefore, for non-appearance at the TCC, a minimum fine of 17,000 hryvnias will be issued to a conscript, and companies that ignore the need to keep military records of employees will be fined in the amount of 34,000 hryvnias. However, the initial fines will not be applied if TCC employees have the opportunity to obtain personal data from electronic state registers.

How will fines be issued in absentia?

In absentia, that is, without the presence of the violator and drawing up a report. At the same time, the TCC must have documents confirming that the conscript received a summons from the Military Commissariat and ignored it. However, the law does not specify what the documents should be. Most likely, a note on the impossibility of delivering the summons or demand to the registered address indicated in the postal message will be sufficient.

In our opinion, in this case, the TCC should apply to the court for a resolution on bringing the conscript to administrative responsibility, and only then should the executors receive it. This is necessary because bringing a person to justice without a court decision can cause corruption risks on the part of the TCC.

What other punitive sanctions, apart from fines, does the new law provide for?

The adopted law will be applied together with another law on the digitization of military records, which came into force in April 2024. It allows you to collect an array of personal data about a conscript in automatic mode into one “electronic case” in the Register of Conscripts’ Obligations, which will have the same legal force as a paper case.

At the moment, Oberig automatically receives information from the register of the State Tax Service, the State Registry of Civil Status Acts, the State Judicial Administration, the State Border Guard Service, the Ministry of Education and Science, and the State Migration Service. Soon, the Pension Fund register will be added, from where data about the person’s work experience, in which industry he worked and what he did, will be received. Therefore, the state will have a complete picture of conscripts and those who violate the legislation on military registration and mobilization. This process will take place automatically, without the participation of conscripts, which frees them from unnecessary visits to TCC and SP.

In the “Oberig” register there is a separate field about the status of service of the summons – when it was served and what is its status. We would like to remind you that notification of conscripts must be done only in accordance with the law, i.e. in person and certified by signature. All other methods are illegal.

Thus, if a conscript works at an enterprise, is officially employed and is not on the military register or ignores summonses, he can be quickly identified. If he does not respond to a summons to the TCC, he will be entered in the register of debtors, and in case of non-payment of the fine, his accounts will be blocked.

Is evasion of mobilization based on religious beliefs punishable by law?

Interesting question! The Criminal Court of Cassation in case No. 344/12021/22 (proceedings No. 51-90km24) indicated under what circumstances refusal of military service for religious reasons may be justified. We will read you the position of the court:

“In the conditions of the armed aggression of the Russian Federation against Ukraine, when the life, health, safety of other citizens and the very existence of the state are at risk, there is an urgent need for proper manning of the Armed Forces of Ukraine to repel aggression and high risks of dishonest behavior of persons subject to conscription aimed at evading the constitutional duty to protect the Motherland. Under such special conditions of achieving a fair balance between human rights under Art. 9 of the Convention and Art. 35 of the Constitution in terms of the possibility of conscientious refusal from military service and the interests of protecting the sovereignty, territorial integrity of Ukraine, the rights and freedoms of other persons requires ensuring an objective verification of a person’s claims about the incompatibility of his religious beliefs with military service and confirmation by evidence of the existence of relevant beliefs. This does not mean that the possibility of exercising the right to conscientiously refuse military service is limited to membership in registered religious organizations, the content of whose creed provides for the unconditional inadmissibility of such service, carrying and using weapons.

The right to freedom of religion has both external and internal aspects, and joining with other people in religious organizations as social structures is only one of the alternative possible forms of its external expression. However, refusing to serve in the armed forces for reasons of conscience, a person must demonstrate the presence of relevant deep, sincere and consistent religious convictions with certain data, in addition to his own words and the statements of close people.

That is, in order to avoid punishment, a person must confirm: deep, sincere and consistent religious beliefs with certain data, in addition to his own words and statements of close people, as well as belonging to religious organizations operating in accordance with current legislation, whose creed prohibits the use of weapons.