The Verkhovna Rada has adopted in principle a bill aimed at establishing criminal liability for officials involved in mobilization processes and the conduct of military medical examinations. Let’s analyze the main changes and shortcomings of this initiative.
Key Changes
The issue of liability for officials at territorial recruitment and social support centers, as well as for members of military medical commissions, for violations of legislation on defense, mobilization
preparation and mobilization became a pressing issue following the introduction in May 2024 of fundamental amendments to the Law “On Mobilization Preparation and Mobilization.” These changes provided for the introduction of new grounds for mobilization and the expansion of the competencies and powers of the relevant officials.
To ensure a balance, the Verkhovna Rada adopted as a basis the draft law “On Amendments to the Criminal Code of Ukraine Regarding the Introduction of Criminal Liability for Violations of Legislation on Defense, Mobilization Preparation, and Mobilization Committed by Heads of Territorial Recruitment and Social Support Centers, chairs and members of military medical commissions” (No. 12442).
The draft proposes to supplement the Criminal Code with new articles:
Article 3371: intentional violation of the procedure for conducting a medical examination to determine fitness for military service based on health status, committed by a person authorized to conduct such a medical examination, resulting in the unlawful conscription of citizens into military service or their unlawful discharge from military service. The penalty under this article provides for imprisonment for a term of 2 to 6 years, and under martial law—from 3 to 8 years, with a ban on holding certain positions for up to 3 years.
Article 4262: Violation by a military official of the procedure for conscripting (enlisting) a citizen into military service, resulting in the conscription (enlistment) of a citizen who is not subject to such conscription (enlistment) in accordance with the law, or the unlawful exemption of a citizen from conscription (enlistment) into military service. This offense is punishable by disciplinary restrictions for a term of up to 2 years or imprisonment for a term of up to 6 years, and, if an aggravating circumstance applies—namely, the commission of the crime under martial law—imprisonment for a term of 3 to 8 years, along with disqualification from holding certain positions or engaging in certain activities.
It is also proposed to expand the scope of persons subject to criminal liability under Article 368⁵ of the Criminal Code (“Illegal Enrichment”). It is proposed to include the chairs, deputy chairs, members, and secretaries of non-staff, permanently operating medical expert commissions or local medical commissions among the subjects of this criminal offense. This means that these individuals may be held liable for acquiring assets that significantly exceed their lawful income. The penalty under this article provides for imprisonment for a term of 5 to 10 years, along with disqualification from holding certain positions or engaging in certain activities.
Weaknesses
The following should be considered weaknesses of this legislative initiative.
1. The risk of excessive criminalization, since the Criminal Code already contains provisions establishing liability for committing such socially dangerous acts, in particular:
Article 425 of the Criminal Code (negligent attitude toward military service);
Article 4261 of the Criminal Code (abuse of authority or official powers by a military official);
Article 366 of the Criminal Code (official forgery)—in cases where an official issues knowingly false official documents or enters knowingly false information into official documents;
Article 368 of the Criminal Code (acceptance of an offer, promise, or receipt of an unlawful benefit by an official);
Article 364 of the Criminal Code (abuse of authority or official position).
In this case, the introduction of a special ground for criminal liability for violating the procedure for conducting a medical examination and for a military official’s violation of the procedure for conscription into military service could lead to the creation of artificial competition among criminal law provisions and a violation of the principle of economy in criminal law enforcement (the “last resort” principle).
2. The vagueness of the provisions of Articles 3371 and 4262 of the Criminal Code, in which the terms “conscription,” “enlistment,” and “assignment” are used as synonyms. This does not correspond to the interpretation of these categories under the Law “On Military Duty and Military Service,” which clearly distinguishes between military service:
on a voluntary basis (under contract);
by assignment (for basic military service);
through the conscription of citizens into military service (during mobilization).
Thus, the rationale for establishing criminal liability for violations of the procedure for conducting medical examinations specifically during the enlistment of a citizen into military service lacks adequate legal justification. The text of the bill does not specify how these terms correlate with the new provisions. This could lead to ambiguous interpretations and difficulties in law enforcement.
3. Uncertainty regarding the jurisdiction over criminal offenses provided for in the new Article 4262 of the Criminal Code. The draft does not amend Article 216 of the Code of Criminal Procedure and does not specify the jurisdiction over criminal offenses provided for in the new Article 4262² of the Criminal Code. That is, the pretrial investigation will be conducted in accordance with the general rule of jurisdiction—by investigators of the National Police. However, pursuant to the provisions of paragraph 3 of part 4 of Article 216 of the Code of Criminal Procedure, pretrial investigations of criminal offenses involving violations of the established order of military service are conducted by investigators of the State Bureau of Investigations. Provisions with similar content are also contained in the current paragraph 3 of part 1 of Article 5 of the Law “On the State Bureau of Investigations.”
4. Inconsistencies between criminal and anti-corruption legislation. The draft proposes amending Note 1 to Article 368-5 of the Criminal Code by expanding the scope of persons subject to criminal liability for corruption offenses to include heads, their deputies, members, and secretaries of non-staff, permanently operating Medical and Social Expert Commissions or Local Medical Commissions (i.e., only the specific individuals listed in subparagraph “g” of paragraph 2, Part 1 of Article 3 of the Law “On Preventing Corruption”).
At the same time, in December 2024, the medical and social expert commissions were dissolved, and the functions of conducting expert examinations to determine disability were assigned to expert teams assessing an individual’s daily functioning. Corresponding amendments were also made to the Law “On the Prevention of Corruption,” specifically to subparagraph “g” of paragraph 2 of Part 1 of Article 3 of the law. Specifically, the chairs and members of expert teams assessing an individual’s daily functioning are equated with persons authorized to perform the functions of the state or local self-government.
Therefore, from a systemic perspective, it is advisable to extend liability to all entities involved in making decisions that result in an individual being granted or denied a deferment from military conscription during mobilization or discharge from military service.
Potential Consequences
If the bill is adopted in its current form, it could have both positive and negative consequences. On the one hand, introducing criminal liability for violations of legislation on defense, mobilization preparation, and mobilization could improve discipline among relevant officials, which is important for ensuring the effectiveness of mobilization processes in wartime.
On the other hand, without proper refinement, this bill risks creating legal uncertainty, complicating the work of law enforcement agencies, and leading to abuses.
Author: Yuriy Radzievsky, attorney and partner at Barristers, and Rodion Glushko, attorney at Barristers
Source: https://zib.com.ua/ua/166387-kriminalna_vidpovidalnist_za_porushennya_mobilizaciynogo_zak.html?fbclid=IwY2xjawJjKRVleHRuA2FlbQIxMAABHqkiZbCuX26SScvGpdj4ZYB0cOIvYGUb638zSXH6JDpp1v03PjvxlICn9FJf_aem_LO4VT9MhUbpc3ZRKVXyPyw