Monitoring of the SBI in TCC cases questioned: inconsistencies with the investigation procedure found in the bill
Ukraine records a significant number of high-profile cases regarding violations during military registration, conducting military-medical examinations, and decisions on conscription or exemption from military service. In this regard, comprehensive strengthening of administrative and criminal liability is proposed for officials of the territorial recruitment and social support centers, military-medical commissions, and military officials.
As reported by the "Judicial and Legal Newspaper", bill No. 15114 proposes amendments to the Code of Ukraine on Administrative Offenses, the Criminal Code of Ukraine, and the Criminal Procedure Code of Ukraine. In particular, it provides for:
- an addition to Article 210-1 of the Code of Administrative Offenses with a new part regarding liability for violations of military registration that led to the illegal registration of persons not subject to such registration;
- introduction of a new Article 337-1 of the Criminal Code of Ukraine, which provides criminal liability for intentional violation of the procedure for military-medical examination if it led to illegal conscription or illegal exemption from service;
- introduction of a new Article 426-2 of the Criminal Code of Ukraine regarding liability of military officials for violations of the conscription procedure that led to illegal conscription or exemption;
- clarification of the note to Article 368-5 of the Criminal Code of Ukraine, proposing to include officials of non-staff military-medical and flight-medical commissions among persons equated to those authorized to perform state functions;
- an addition to Article 214 of the Criminal Procedure Code of Ukraine regarding monitoring by the State Bureau of Investigation of circumstances that may indicate military criminal offenses, including based on information from the media.
However, the bill received remarks related to certain provisions.
The Verkhovna Rada emphasized that the wording of the first part of Article 337-1 of the Criminal Code of Ukraine is excessively complex and overloaded, which complicates its perception and clear understanding of the norm's content. Therefore, this approach does not meet the requirements of legislative technique regarding clarity, accuracy, and comprehensibility of legal norms. Because of this, the provision may be difficult to interpret and apply unambiguously in practice.
It is noted that Article 337-1 of the Criminal Code combines two different violations in content:
- incorrect conduct of the military-medical examination, which may lead to illegal conscription or acceptance into service of persons unfit for health reasons;
- a violation that, on the contrary, causes illegal exemption or deferment from service.
Therefore, it is proposed to separate these cases into separate parts of Article 337-1 of the Criminal Code. It is also proposed to clarify the wording by adding the words "illegal" or "unjustified" before exemption from conscription or military service. This concerns situations where due to violation of the law there is either illegal conscription of unfit persons or illegal exemption or deferment from service.
Similar remarks apply to Article 426-2 of the Criminal Code of Ukraine. It also combines two different acts by consequences: violation of the conscription procedure leading to illegal conscription of persons not subject to service, and violation leading to illegal exemption from conscription. Therefore, it is advisable to separate these offenses by presenting them in separate dispositions.
In particular, in the part of amendments to Article 368-5 of the Criminal Code of Ukraine, it is proposed to expand the list of persons equated to those authorized to perform state or local government functions. This concerns including heads, their deputies, members, and secretaries of non-staff permanent military-medical commissions or flight-medical commissions.
At the same time, it is noted that such an addition requires coordination with the Law of Ukraine "On Prevention of Corruption." The current version of this law defines the status of persons authorized to perform state functions but does not cover officials of non-staff VLK and flight-medical commissions. In the absence of appropriate changes, inconsistencies between the norms may arise, which could complicate the application of the provisions of Article 368-5 of the Criminal Code in practice.
Remarks also concern the proposed amendments to the Criminal Procedure Code. The bill provides that investigators of the State Bureau of Investigation must monitor circumstances that may indicate military criminal offenses, including based on information from the media. This proposal does not align with the current procedure defined by Article 214 of the Criminal Procedure Code. According to it, an investigator or prosecutor is obliged within 24 hours after receiving information about a possible criminal offense to enter the relevant data into the Unified Register of Pre-trial Investigations and start an investigation. Therefore, introducing a separate monitoring stage may duplicate existing procedures and potentially lead to delays in making procedural decisions. This may further complicate their practical application and affect the effectiveness of the law's implementation as a whole.
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