Translated by Ollie Richardson & Angelina Siard
The citizens of the Russian Federation and “other persons” who visited Crimea, Donetsk, or Lugansk and entered these territories not through Ukrainian checkpoints risk three years of prison.
At a plenary session on October 18th the Verkhovna Rada supported at the second reading draft law No. 7017 “On modifications to the Criminal Code of Ukraine concerning responsibility for illegally crossing the state border”. 243 People’s Deputies voted for the document. The authors of the draft law are Irina Lutsenko – the representative of the President of Ukraine in the Verkhovna Rada of Ukraine – and Artur Gerasimov – the chairman of the “Bloc of Petro Poroshenko” faction.
It should be noted that after the first reading modifications were made to the draft law, but the final text of the draft law hasn’t yet been published on the website of the Verkhovna Rada. Thus at the moment the public authentically doesn’t know what deputies have voted for.
In the version of the first reading the draft law stipulated to impose criminal liability (article 331 of the Criminal Code of Ukraine) if a person having nationality (citizenship) of the aggressor state or by another person in the interests of the aggressor state and in contradiction to the national interests of Ukraine crosses the state border of Ukraine in any way outside checkpoints on the state border of Ukraine or at checkpoints on the state border of Ukraine without the relevant documents or with documents containing false information.
At the second reading, according to the information of the main legal department of the Verkhovna Rada, article 332-2 of the Criminal Code Of Ukraine appeared in the law, which assumes criminal liability for “crossing the border of Ukraine for the purpose of inflicting harm to the interests of the state either by a person who is banned from entering the territory of Ukraine or by representatives of units of the armed forces or other security agencies of the aggressor state in any way outside checkpoints on the state border of Ukraine or at checkpoints on the state border of Ukraine without the relevant documents or with documents containing false information”.
It isn’t yet known whether or not article 331 of the Criminal Code of Ukraine is included in the draft law that deputies voted “for”.
In the initial version of the law it was supposed that illegally crossing the border will be punished by imprisonment for a period of up to 3 years. The repeated commission of such actions or commission by a group of persons will result in imprisonment for a period of 3-5 years, and the commission of such actions with the use of weapons – for a period of 5-8 years.
Prior to the introduction of the law, for this violation article 204-1 of the Code of Ukraine on Administrative Offences stipulated a fine or administrative detention for a term of 15 days.
According to conclusions of the main legal department, the disposition of part one of the new article 332-2 of the Criminal Code of Ukraine stipulates the so-called formal corpus delicti, namely crossing the state border of Ukraine for the purpose of inflicting harm to the interests of the state. The only difference between the composition of an administrative offence under Article 204-2 of the Code of Ukraine on Administrative Offences and part 1 of the new article 332-2 of the Criminal Code of Ukraine will be the purpose of committing such an act. In the absence of the specified purpose the corresponding actions will be qualified as an administrative offence. At the same time, in practice it will be quite difficult to prove the existence or absence of signs of the subjective side of corpus delicti in the actions of a person without measures of operational search activity. However, the impossibility of identifying and documenting the existence of such special features in the actions of a person is unacceptable in the context of individual legal responsibility and the presumption of innocence (article 61 and 62 of the Constitution of Ukraine).
Earlier, on October 17th Irina Lutsenko urged deputies to adopt the document since, according to her, “the Ukrainian special services, law enforcement bodies, and border guards need legislative tools to combat the saboteur groups of the aggressor”.
According to the legal team of “Uspishna Varta”, if article 331 of the Criminal Code remains in the law, it can be used against Ukrainian citizens who make trips to the uncontrolled territories of Donbass and Crimea.
At the time of crossing the line of demarcation a person is identified by the “Arkan” system, which controls the departure/entrance of people in the uncontrolled territory. For example, if a person travels to Russia on legal grounds and from there enters the uncontrolled territory of Ukraine (Crimea, the territory of carrying out the Operation of United Forces), they thereby actually commit the specified corpus delicti.
What does this mean? If one wants to travel lawfully from Russia to Crimea or the separate areas of the Donetsk and Lugansk regions, one must enter Ukraine and already from Ukrainian territory go to the peninsula or to the territory of the “occupied” part of Donbass. Only in this case will Ukraine not regard a visit to these territories a criminal offense.
As for the subject of the crime, in the first version of the law the citizens of the Russian Federation were specified in general. As a reminder, many Ukrainians living in Crimea and partially Donbass after the events of 2014 also obtained Russian citizenship.
Unlike in the first version of the law, the article 322-2 of the Criminal Code of Ukraine that “appeared” at the second reading specifies that the subject is “representatives of units of the armed forces or other security agencies of the aggressor state” who enter the territory of Ukraine “in any way outside checkpoints on the state border of Ukraine or at checkpoints on the state border of Ukraine without the relevant documents or with documents containing false information”. Such a definition in general is legally incorrect, since the term “representatives” refers to officials.
Human rights activists greatly fear the concept provided by the law on illegal border crossings “other persons in the interests of the aggressor state”. As is the wording in the text of the draft law “inflicting harm to the interests of the state”, which for the purposes of defining the objective side of corpus delicti is inadmissible since it has a rather general character and demands a specification in order to prevent arbitrary interpretations.
Proceeding from the latest legislative proposals concerning the need to register “agents of the Kremlin” and attaching the “separatist” label to a number of citizens at the level of official rhetoric, any person expressing views that are in opposition to the authorities can be placed in this category.
Such a legislative approach also doesn’t take into account the requirements of article 8 of the Constitution of Ukraine concerning the principle of the rule of law, and also the legal positions of the Constitutional Court of Ukraine, which came to the conclusion that the principles of equality and justice, legal definiteness, clarity, and the unambiguity of the norms of law are the defining elements of the rule of law, since otherwise it cannot ensure its uniform application, doesn’t exclude the limitlessness of interpretation in the practice of applying the law, and inevitably leads to arbitrariness (paragraph 2 of subpoint 5.4 of point 5 of the reasoning part of the Ruling of the Constitutional Court of Ukraine from September 22nd, 2005 No. 5-rp/2005).
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