Since the introduction of martial law in Ukraine, the ban on crossing the border for men aged 18 to 60 has been in effect. Of course, there are legal exceptions to this ban, and often men of draft age cross the border legally, but there are no less frequent attempts to cross the border illegally. In this article, we will find out what responsibility for illegally crossing the border of Ukraine threatens the guilty and whether there is responsibility for not returning to Ukraine.
WHEN CAN CRIMINAL LIABILITY ARISE FOR ILLEGALLY CROSSING THE BORDER OF UKRAINE
Depending on the circumstances and methods of illegal crossing of the state border, criminal liability may arise under the following articles:
- Article 358 of the Criminal Code of Ukraine: Forgery of documents, seals, stamps and forms, sale or use of forged documents, seals, stamps
Criminal liability under this article may arise if a person uses forged documents to cross the border. For example, a forged passport, which states that the man is 17 years old, when in fact he has already turned 18, forged conclusions of the VLK on recognition of unfitness, etc. The guilty may face a fine or restriction of freedom.
- Article 369 of the Criminal Code of Ukraine: Offering, promising or providing an unlawful benefit to an official
Criminal responsibility under this article occurs if a person tries to bribe a border guard. Moreover, the responsibility arises for the very offer to give a bribe for illegal crossing of the border, regardless of whether the border guard accepted the offer and took the bribe and regardless of whether the border was successfully crossed as a result. Such acts are punishable by a fine or imprisonment for up to 4 years.
- Article 336 of the Criminal Code of Ukraine: Evasion of conscription for military service during mobilization, for a special period, for military service upon conscription of reservists during a special period
In all cases of illegal border crossing by men aged 18 to 60, regardless of the method, their actions can also be qualified under Article 336 of the Criminal Code of Ukraine, since today most often illegal crossing is carried out precisely for the purpose of evading the draft.
ADMINISTRATIVE RESPONSIBILITY FOR ILLEGAL BORDER CROSSING OF UKRAINE
Of course, there are other ways of crossing the border, in addition to those listed above. In particular, crossing the border outside checkpoints (through a forest, river, in the trunk of a car, etc.), providing someone else’s document when crossing the border (including a woman’s passport, dressed accordingly). In such cases, administrative responsibility provided for in Article 204-1 of the Code of Administrative Offenses: illegal crossing or attempted illegal crossing of the state border of Ukraine will follow. The commission of this administrative offense is punishable by a fine in the amount of 3,400 to 8,500 hryvnias or administrative arrest.
CRIMINAL LIABILITY FOR ILLEGAL BORDER CROSSING DURING MARTIAL LAW: WHAT CAN WE EXPECT?
It is no secret that since the introduction of martial law, legislation has undergone considerable changes. So, the following changes are proposed regarding illegal border crossing. Draft law No. 7268 has been registered in the Verkhovna Rada, which proposes to supplement the Criminal Code of Ukraine with a special article that will provide for criminal liability specifically for illegal border crossing (by any means) by conscripts during martial law.
If it is accepted, the guilty will face a fine or imprisonment for a period of 3 to 5 years.
CRIMINAL LIABILITY FOR FAILURE TO RETURN TO UKRAINE
For the topic of responsibility for illegal crossing of the border, it is also relevant to consider draft law No. 7265, which proposed to establish criminal liability for failure to return to Ukraine after the introduction of martial law. Criminal liability for failure to return to Ukraine under draft law No. 7265 would apply to persons who crossed the border legally, but are conscripted. According to the draft law, failure to return to Ukraine would be punishable by imprisonment for a term of 5 to 10 years.
On September 6, 2022, Bill No. 7265 was withdrawn from consideration.
However, the team of Bachynskyi and Partners JSC will continue to monitor the proposals of the Verkhovna Rada related to the establishment of criminal liability for failure to return to Ukraine or illegal border crossing in Ukraine during martial law.
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