On August 21, 2025, the Cabinet of Ministers of Ukraine submitted Bill No. 13673 (https://itd.rada.gov.ua/billinfo/Bills/Card/57168) to the Verkhovna Rada of Ukraine to amend the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and other laws of Ukraine regarding liability for offenses related to crossing the state border of Ukraine.

Draft Law of Ukraine “On Amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine, and Other Laws of Ukraine Regarding Liability for Offenses Related tocrossing the state border of Ukraine” (hereinafter referred to as the “Draft Law”) has been developed to ensure the legal regulation of liability for persons who cross the state border of Ukraine with the intent to evade conscription into military service during mobilization, to establish grounds for exemption from such liability during martial law, as well as to bring the provisions of the Code of Ukraine on Administrative Offenses (hereinafter referred to as the CUAO) into compliance with Decision No. 8-r(I)2022 of the Constitutional Court of Ukraine dated October 12, 2022.

However, if such a bill is adopted in its proposed form, law enforcement officers will have no legal authority to perform their assigned duties, which will result in either complete inaction or an abuse of their official powers.

What is the current situation?

The current Article 2041 of the Code of Administrative Offenses, which provides for administrative liability for the illegal crossing or attempted illegal crossing of Ukraine’s state border, has already been amended and supplemented on February 27, 2018, with the words “using a forged document,” and the penalties under the article, in addition to increased fines, were strengthened to include administrative arrest and confiscation.

Additionally, on July 17, 2015, Article 2043 was added to the Code of Administrative Offenses, establishing administrative liability for violating the procedure for moving goods into or out of an area where counterterrorism operations are being conducted.

The authority to draw up reports under Articles 2041 and 2043 of the Code of Administrative Offenses is granted to authorized officials of the State Border Guard Service of Ukraine, and cases are heard by judges of district, city district, municipal, or city-district courts.

As of April 30, 2018, the counterterrorism operation in the Donetsk and Luhansk regions was terminated; and since then, authorized officials of the State Border Guard Service of Ukraine have not drawn up a single report under Article 2043 of the Code of Administrative Offenses.

The current version of Article 3322 of the Criminal Code of Ukraine also provides for liability for the illegal crossing of the state border, but only for specific perpetrators of the offense (a person prohibited from entering the territory of Ukraine, or representatives of the armed forces or other law enforcement agencies of an aggressor state) or where there is a mandatory intent to commit a criminal offense—namely, causing harm to the interests of the state.

What is being proposed?

The bill proposes

1) to repeal Article 2043 of the Code of Administrative Offenses (due to its partial unconstitutionality and ineffectiveness);

2) to transfer the authority to hear cases involving administrative offenses provided for in Article 2041 of the Code of Administrative Offenses (regarding the illegal crossing of the state border) to state border guard agencies;

3) to amend Article 332 of the Criminal Code of Ukraine (illegal transportation of persons across the state border) by adding a qualifying element in the form of committing a criminal offense under martial law;

4) establish criminal liability for:

- illegally crossing the state border under martial law or a state of emergency outside of state border crossing points (Part 4 of Article 3322 of the Criminal Code of Ukraine);

- obstructing the construction of border infrastructure, or damaging or destroying it (Article 3323 of the Criminal Code of Ukraine);

- a conscript, person subject to military service, or reservist violating the established duration of stay outside Ukraine (Article 3371 of the Criminal Code of Ukraine);

5) establish grounds for exemption from criminal liability under the fourth part of Article 3322 and Article 3371 of the Criminal Code of Ukraine, as well as establish a special pretrial investigation under these articles;

6) establish the obligation for persons subject to military service (conscripts, reservists) to comply with the prescribed period of stay outside Ukraine.

Legal Consequences of Adopting the Bill:

Despite the authors’ desire to demonstrate the necessity of adopting this bill, as well as its unique role in regulating a number of issues, the following points are worth noting.

The authors of the bill, in proposing amendments to the penalties under Article 2041 of the Code of Administrative Offenses, make no secret of the fact that the sole purpose of such amendments is to restrict the right of Ukrainian citizens to access to justice. As of today, it is the court that, when reviewing reports of administrative offenses under Article 2041 of the Code of Administrative Offenses—which are drawn up by the police or border guards— decides whether the actions of individuals constitute an administrative offense for illegally crossing or attempting to illegally cross the state border of Ukraine.

Thus, citizens have the right to a proper defense and legal assistance in court, as well as the right to present evidence or explanations to the court BEFORE being held accountable.

In Part 4 of Article 258 of the Code of Administrative Offenses, the legislature has authorized the omission of administrative offense reports when, in accordance with the law, a fine is imposed and collected at the scene of the offense.

However, the draft law proposes NO changes to the procedure for drawing up reports, and a fine imposed by the State Border Guard Service of Ukraine under Article 2041 of the Code of Administrative Offenses cannot be collected on the spot.

Therefore, if the bill is adopted in its proposed form, a legal impasse will arise, consisting of the inability to hold individuals administratively liable under Article 2041 of the Code of Administrative Offenses.

To clarify: the bill proposes to exclude the National Police and the State Border Guard Service of Ukraine from the list of authorities authorized to draw up reports on administrative offenses under Articles 2041 and 2043 of the Code of Administrative Offenses.

However, the draft law does NOT abolish the obligation to draw up a report on an administrative offense prior to holding individuals accountable, since the fine will be imposed NOT at the scene of the offense, but within 15 days.

Therefore, transferring the authority of judges to hear cases under Article 2041 of the Code of Administrative Offenses to state border protection agencies will have no effect, since, without the authority to draw up reports on administrative offenses, the State Border Guard Service of Ukraine will have nothing to adjudicate.

In addition, the bill proposes to remove Article 2043 (violation of the procedure for moving goods to or from the area where an anti-terrorist operation is being conducted) from the Code of Administrative Offenses due to its ineffectiveness, since the anti-terrorist operation has been completed.

This approach by the bill’s authors is short-sighted because, given the military and political situation in Ukraine, the possibility of having to conduct another counterterrorism operation in certain regions of the country cannot be ruled out, which would necessitate further amendments to the Code of Administrative Offenses.

For example, at present, civil aviation aircraft do not operate in Ukrainian airspace, but this does not mean that Article 112 (violation of rules of conduct on an aircraft) or other provisions relating to flights should be removed from the Code of Administrative Offenses.

However, the biggest problem with the bill lies in the authors’ proposal to introduce criminal liability under new articles of the Criminal Code of Ukraine.

After all, the authors of the bill failed to amend Article 216 of the Criminal Procedure Code of Ukraine to specify the particular law enforcement agencies that will conduct pretrial investigations into the proposed criminal offenses provided for in Part 4 of Article 332-2, Article 332-3, and Part 1 of Article 337-1 of the Criminal Code of Ukraine.

Thus, the proposed amendments to the Criminal Code of Ukraine make no sense whatsoever without specifying the agency responsible for the pretrial investigation of these criminal offenses.

In conclusion, the adoption of this bill will NOT contribute to ensuring legal regulation of the liability of persons who cross the state border of Ukraine for the purpose of evading conscription into military service; on the contrary, it will lead to legal chaos and uncertainty within the law enforcement system.

Author of the article: Mykhailo Yakovchuk, attorney at Barristers Law Firm