Will the mechanism designed to prevent casualties resulting from terrorist attacks by the Russian Federation be effective?

In the third year of the large-scale invasion, the Verkhovna Rada managed to introduce administrative and criminal liability for violations of the requirements for the maintenance and operation of civil defense structures (shelters).

At its session on January 9 of this year, Parliament adopted in its entirety the draft Law of Ukraine “On Amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine Regarding the Introduction of Liability for Violations of Requirements for the Maintenance and Operation of Civil Defense Structures” (No. 9362-1) in its entirety.

Let us analyze what changes the draft law proposes and, most importantly, whether the law will be able to achieve its primary goal—preventing casualties resulting from terrorist attacks by the Russian Federation due to a lack of access to shelters or their improper maintenance.

It is proposed to amend the Code of Ukraine on Administrative Offenses by adding Article 175-3, which reads as follows: “Violation of the requirements established by law regarding the maintenance and operation of civil defense shelters, — shall result in the imposition of a fine ranging from two hundred to five hundred non-taxable minimum incomes (3,400–8,500 UAH). A repeat offense under paragraph one of this article — shall be punishable by a fine of five hundred to one thousand non-taxable minimum incomes (8,500–17,000 UAH).”

The Criminal Code of Ukraine has been supplemented with Article 270-2, as follows: “Violation of the requirements established by law regarding the maintenance and operation of civil defense structures, resulting in the death of a person or other serious consequences, shall be punishable by imprisonment for a term of three to eight years.”

The articles proposed to be added to the Code of Administrative Offenses and the Criminal Code of Ukraine are, by their legal nature, blanket provisions, as they do not independently define the requirements for the maintenance and operation of civil defense facilities but refer to other regulatory acts.

Currently, the requirements for the creation, maintenance, operation, and record-keeping of the civil defense infrastructure are established by:

- the Civil Protection Code of Ukraine;

- the Procedure for the Creation, Maintenance, and Record-Keeping of the Civil Protection Infrastructure Fund, approved by Resolution No. 138 of the Cabinet of Ministers of Ukraine dated March 10, 2017;

- Order of the Ministry of Internal Affairs No. 579 dated July 9, 2018; “On the Approval of Requirements Regarding the Use and Accounting of the Civil Protection Shelter Fund,” registered with the Ministry of Justice of Ukraine on July 30, 2018, under No. 879/32331;

- a number of state building codes.

The most pressing problem—the resolution of which was, in particular, the goal of the adopted amendments—is unimpeded, round-the-clock access to shelters.

Paragraph 3-1 of Order No. 138 of March 10, 2017, stipulates that facilities in the civil defense infrastructure are of strategic importance for ensuring the protection of the population, which entails, among other things, ensuring unimpeded, round-the-clock access for the public to civil defense facilities when alerts and announcements regarding the threat of or occurrence of emergencies are issued, as well as creating conditions for the survival of the population taking shelter in such facilities. Civil defense facilities at educational institutions are accessible only to participants in the educational process during in-person instruction;

The wording regarding the need to ensure unimpeded access to shelters in this section of the Procedure is ambiguous and may be interpreted to mean that unimpeded access to civil defense facilities (shelters) is ensured only during threat alerts, that is, only during air raid alerts. In fact, access to shelters during air raid alerts must be available around the clock. If an air raid alarm sounds, say, at 3 a.m., the shelter must be open during the alarm.

But should access to shelters be provided around the clock even when there are no air threat alerts? Should shelters remain open 24 hours a day regardless of whether or not alarms are sounding? The Regulations do not provide a clear answer to this question.

Officials at various levels, representatives of military administrations, and the State Emergency Service unanimously state that shelters must be open around the clock, regardless of whether air raid alerts are issued or not. However, in their statements and comments, they only mention the need to ensure such access in accordance with the requirements of “current legislation,” without citing any regulatory document that would provide for this.

The Law of Ukraine “On the Legal Regime of Martial Law” stipulates that the military command, together with military administrations (if established), may introduce and implement such measures under the legal regime of martial law, including, in particular, establishing procedures for the intended use of civil defense shelters of all forms of ownership and departmental affiliation, which must include requirements to ensure round-the-clock, unimpeded access to them by the public (para. 18, part 1, Art. 8 of the Law).

The Law “On the Legal Regime of Martial Law” itself does not establish an obligation, in particular, to ensure round-the-clock, unimpeded access to shelters for the population, but merely grants the military command and local administrations the right to establish procedures for the use of civil defense shelters, which must ensure round-the-clock, unimpeded access to them for the population. With the introduction of amendments to the Law “On the Legal Regime of Martial Law” in November 2023 and the revision of paragraph 18 as described above, it cannot be ruled out that the military command, together with the regional military administrations, has established procedures that provide for round-the-clock, unimpeded access to shelters.

However, there is currently no separately approved procedure for the use of facilities in the civil defense shelter system that has been adopted by a military administration or other military command of a specific region and is publicly available. This raises the question: Are such decisions by the military command and military administration, which could approve such procedures, considered regulatory acts within the meaning of the Law of Ukraine “On Lawmaking”?

As noted above, the proposed amendments to the Code of Administrative Offenses and the Criminal Code of Ukraine are blanket provisions that refer to other specialized legislation. However, as we can see, such legislation either does not exist at all (there are no approved procedures for the use of shelters at the level of regional military administrations), or the wording regarding the need to ensure unimpeded access to shelters is ambiguous (Cabinet of Ministers Order No. 138, dated March 10, 2017).

Consequently, when analyzing the draft law, which proposes to introduce administrative and criminal liability for violations of the requirements for the maintenance and operation of shelters, it can be argued that it violates the principle of legal certainty as part of the rule of law, which requires clarity, comprehensibility, and unambiguity of legal norms, in particular their predictability and stability.

In the absence of compliance with this principle, and in the absence of unambiguity in the legal norms establishing requirements, in particular regarding ensuring round-the-clock access to shelters, it is unlikely that imposing liability for violations of such requirements will serve as an effective mechanism aimed at preventing threats to human life and health.

Another specific feature of the proposed amendments to the Code of Administrative Offenses and the Criminal Code of Ukraine, as well as the adopted amendments to the CMU Order No. 138 of March 10, 2017, namely the addition of paragraph 3-1 in August 2023 and the adoption of amendments to the Law of Ukraine “On the Legal Regime of Martial Law” in November 2023—where the new version sets forth paragraph 18, Part 1, Article 8 of the Law, is that these changes were a response to the tragic incident on June 1, 2023, on the premises of the Municipal Non-Profit Enterprise “Center for Primary Health Care No. 3,” where the center’s security guard, Vadym Moshkin, failed to open the shelter in time during a missile attack, resulting in the deaths of three people.

Vadym Moshkin has been charged with a criminal offense under Part 3 of Article 135 of the Criminal Code of Ukraine (endangering others). Charges were brought against Andriy Tkachuk, Director of the Department of Municipal Security of the Kyiv City State Administration; Iryna Alekseyenko, First Deputy Head of the Desnianskyi District State Administration in Kyiv; and Oleg Shugalevich, Director of the Municipal Non-Profit Enterprise “Center for Primary Medicaland Sanitary Care No. 3” in the Desnianskyi District of Kyiv, Oleg Shugalevich, and his deputy, Vasyl Desyk, were charged under Part 3 of Article 367 of the Criminal Code of Ukraine (official negligence). Without delving into a detailed analysis of the substance of the charges, it is worth noting that law enforcement agencies (with the support of the judicial branch) have already classified the inaction of officials—related to their failure to ensure access to shelters— has already been classified as official negligence and/or endangering others.

With the addition of Article 270-2 to the Criminal Code, which provides for liability for violating statutory requirements regarding the maintenance and operation of shelters, the same act (action or inaction) by officials responsible for the maintenance and operation of shelters may be classified under two completely opposite articles of the Criminal Code. 

This possibility of classifying the same act under provisions of the Criminal Code with different penalties is not only a violation of the principle of legal certainty mentioned above, but, more importantly, it carries corruption risks associated with attempts to classify the act under the article carrying the lightest penalty. In this case, under the newly introduced Article 270-2 of the Criminal Code.

Moreover, with the introduction of Article 270-2 of the Criminal Code, which provides for liability in the form of imprisonment for a term of three to eight years, the purpose of the proposed amendments to increase liability is completely negated, since Part 3 of Article 367 of the Code—under which such acts are currently prosecuted—provides for a penalty of imprisonment for a term of five to eight years.

It is likely that law enforcement agencies will classify the actions of officials related to violations of statutory requirements for the maintenance and operation of shelters as a combination of crimes, namely under both Article 367 and Article 270-2 of the Criminal Code. However, the legality of such a classification will ultimately be left to the discretion of the Supreme Court.