The Key Legislative Changes

The Key Legislative Changes

What has changed in criminal law and procedure in 2021?

Liability for not declaring and concealing the assets has been restored and strengthened

Criminal liability for violations in the field of anti-corruption legislation has been restored and strengthened. The Criminal Code of Ukraine is supplemented by Article 366-2 (declaration of false information) and Article 366-3 (failure to submit a declaration by a person authorized to perform functions of the state or local self-government).

From now on, if the declared information differs from the reliable one amounting to between 500 and 4000 minimum subsistence levels for able-bodied persons, a fine of 3000 to 4000 non-taxable minimum incomes of citizens, or community service for a term of 150 to 240 hours, or restriction of liberty for up to 2 years, with deprivation of the right to occupy certain positions, or engage in certain activities for a term of up to 3 years, will be applied.

If the declared information differs from the reliable one amounting to more than 2000 subsistence minimums for able-bodied persons, a fine of 4000 to 5000 non-taxable minimum incomes of citizens, or community service for a term of 150 to 240 hours, or restriction of liberty for up to 2 years, with deprivation of the right to occupy certain positions, or engage in certain activities for a term of up to 3 years, will be applied.

Intentional failure to submit declaration by a person authorized to perform functions of the state or local self-government incurs a fine of 2500 to 3000 non-taxable minimum incomes of citizens, or community service for a term of 150 to 240 hours, or restriction of liberty for up to 2 years, or imprisonment for a term of up to 1 year, with deprivation of the right to occupy certain positions, or engage in certain activities for a term of up to 3 years.

Tax amnesty and increased criminal liability for tax evasion

On January 21, 2021, the legislative changes on encouraging de-shadowing of citizens’ incomes through the introduction of voluntary declaration came into force.

In particular, Article 212 and Article 212-1 of the Criminal Сode of Ukraine were supplemented by the provisions according to which acts concerning intentional evasion from payment of the contributions, taxes, fees defined by such articles, if such actions are connected with acquisition (formation of sources of acquisition) creation, receipt, use of objects in respect of which a person has submitted a one-time (special) voluntary declaration and paid the agreed amount in the manner and under the conditions specified by the Tax Code of Ukraine, are not considered as a criminal offense.

At the same time, the legislator strengthened criminal liability for intentional evasion of contributions, taxes, fees specified in Article 212 and Article 212-1 of the Criminal Code of Ukraine.

Decriminalization of liability under Article 375 of the Criminal Code of Ukraine

In 2021, the decision of the Constitutional Court of Ukraine on declaring Article 375 of the Criminal Code of Ukraine (ruling by a judge (judges) of a knowingly unjust sentence, decision, ruling) as unconstitutional came into force. 

In justification of the need to decriminalize the act under Article 375 of the Criminal Code of Ukraine, the Constitutional Court of Ukraine noted that judges are independent in their activities, and influence on a judge in any way is prohibited. At the same time, Article 375 of the Criminal Code of Ukraine was formulated in such a way that allowed the possibility of abuse by third parties, because the concept of “unjust” is an evaluative category.

Thus, the existence of the rule of law that creates risks and opportunities to influence judges negates the precepts of the Constitution of Ukraine regarding the independence of judges.

Decriminalization of liability under Article 216 of the Criminal Code of Ukraine

From 01.01.2022 criminal liability for:

  • illegal production, forgery, use of control marks;
  • sale of illegally manufactured, obtained, or counterfeit control marks, 

has been excluded.

The exclusion of Article 216 of the Criminal Code of Ukraine is related, in particular, to the abolition of the obligation to obtain control marks by importers, exporters, and reproducers of copies of audiovisual works, phonograms, videograms, computer programs, databases.

The provisions on special (correspondence) pre-trial investigation have been improved

From May 14, 2021, certain provisions in connection with the implementation of a special pre-trial investigation regarding persons who have committed a criminal offense and are hiding outside Ukraine, or in the temporarily occupied territory of Ukraine have been improved.

The summons of a person in respect of whom there are reasonable grounds to believe that such a person has left and/or is in the temporarily occupied territory of Ukraine shall be published in the media and on the official website of the Prosecutor General’s Office and/or a copy of the summons shall be sent to the defense.

A new ground on a special pre-trial investigation has been introduced. Namely it is non-arrival of a suspect who is internationally wanted and/or who has left and/or is outside Ukraine, summoned by an investigator, prosecutor, or an investigating judge, court, without good reason more than twice.

The court is empowered to consider a request for a measure of restraint in the form of detention and choose a measure of restraint in the absence of the suspect/accused if the prosecutor proves the grounds provided by Article 177 of the Criminal Procedure Code, as well as grounds to believe that the suspect/accused has left, or is in the temporarily occupied territory of Ukraine and/or declared internationally wanted. 

At the same time, when choosing a measure of restraint in the form of detention in respect of the suspect or accused, the term of the decision and the amount of bail is not determined.

The legal grounds and the list of crimes for which a special pre-trial investigation may be carried out in the absence of the suspect have been determined.

Aiming to increase the transparency of the work of the Asset Recovery and Management Agency (hereinafter – ARMA), on November 1, 2021, the legislator amended the relevant law.

The innovations, among others, concern the management of assets and the unification of the provisions of the law with other normative legal acts.

From November 1, 2021, the amount of the value of assets, upon reaching which ARMA manages them, has changed. From now on, the value of assets must exceed 200 subsistence levels set for able-bodied persons on January 1 of the respective year.

The grounds in the presence of at least one of which ARMA can be transferred movable property for sale without the consent of the owner based on the decision of the investigating judge, court, have been established:

  1. property is subject to rapid deterioration;
  2. property quickly loses its value;
  3. storage cost of movable property during one calendar year is more than 50 percent of its value.

At the same time, real estate may not be transferred for sale without the consent of the owner of such property before:

  • conviction of a court that has entered into force, or
  • another court decision that has entered into force, which is the ground for the application of a special confiscation under the Criminal Procedure Code of Ukraine,
  • or a court decision on the recognition of assets as unfounded and their recovery into state revenue, which has entered into force.

ARMA is obliged to return the assets taken into its management to the legal owner within 10 business days in case of a prosecutor’s decision or a court decision that has entered into force, which cancels the seizure of these assets, provided that there is a corresponding court decision in the Unified State Register of Court Decisions.

If the assets in respect of which the seizure was lifted have been sold, the funds received, as well as interest accrued as payment for the use of such funds by the bank, shall be returned to the legal owner of such assets within 10 business days from the date of receipt of the relevant decision to lift the seizure and details of such person’s account.

Criminal liability: changes to the Criminal Code of Ukraine during martial law

Liability for treatment and diversity during maritime has been increased

On March 7, 2022, legislative changes came into force to strengthen the responsibility for crimes against the foundations of the national security of Ukraine under martial law.

In particular, the Criminal Code of Ukraine was supplemented by provisions which establish maximum sentence for treason under martial law and sabotage under martial law or during armed conflict. Namely, it is imprisonment for a term of 15 years or life sentence, with compulsory confiscation of property.

Henceforth, it is prohibited to release the persons who have committed treason and sabotage from serving their sentences by amnesty law.

Criminal liability for collaboration with the russian federation is established

On March 15, 2022, the Criminal Code of Ukraine was supplemented by an article 111-1 (collaborative activities).

Henceforth, the legislator defines as a crime the following acts:

  • public denial of the armed aggression against Ukraine by a citizen of Ukraine; establishment and approval of temporary occupation of part of Ukraine’s territory; public calls by a Ukrainian citizen to support the decisions and (or) actions of an aggressor state and the aggressor state’s armed formations and/or occupation administrations; calls for cooperation with an aggressor state and its armed formations and/or occupation administration; non-recognition of the extension of Ukraine’s state sovereignty over temporarily occupied territories of Ukraine;
  • implementation of propaganda of the aggressor state by a citizen of Ukraine in educational institutions; implementation of actions aimed at the adoption of the standards of education of the aggressor state in educational institutions;
  • transfer of material resources to illegal armed or paramilitary formations of the aggressor state;
  • conducting economic activities in cooperation with the aggressor state and illegal authorities;
  • organizing and conducting political/ information activities in cooperation with the aggressor state aimed at supporting the aggressor state and/or avoiding its responsibility for armed aggression against Ukraine;
  • voluntary holding by a citizen of Ukraine an appointment in illegal authorities, illegal judicial or law enforcement agencies; voluntary participation in illegal armed or paramilitary formations;
  • participation in the organization and conduct of illegal elections and/or referendums in the temporarily occupied territory or public calls for such illegal elections and/or referendums;
  • providing assistance to illegal armed or paramilitary formations of the aggressor state in conducting hostilities against the Armed Forces of Ukraine and other military formations of Ukraine.

Some of the listed actions or decisions that led to the death of people or the occurrence of other serious consequences are considered aggravating circumstances. In such case, the punishment will be imprisonment for a term of 15 years or life imprisonment with deprivation of the right to hold certain positions or engage in certain activities for a period of 10 to 15 years as well as possible confiscation of property.Moreover, if collaboration actions are carried out by an authorized person on behalf of a legal entity, criminal law measures, namely liquidation, may be applied to such entity.

Criminal liability for the institution of regional hostility is established

Article 161 of the Criminal Code of Ukraine was supplemented by a provision according to which intentional actions aimed at inciting regional hatred are considered a crime.

Regional affiliation should be understood as the affiliation of a person by birth or residence to a region – part of the territory of Ukraine or territory of compact settlement of Ukrainians outside the territory of Ukraine – which differs from other territories in a number of historical, geographical, linguistic and other features.

For committing intentional acts aimed at inciting regional hatred, the liability is provided in the form of:

  • a fine of 200 to 500 non-taxable minimum incomes or
  • restriction of liberty for up to 5 years, or
  • imprisonment for up to 3 years, with
  • deprivation of the right to hold certain positions or engage in certain activities for up to 3 years or without such.

An offense of honor and dignity of a military servant, as well as a threat to a military servant, was recognized as a criminal offense

The Criminal Code of Ukraine was supplemented by Article 435-1 (insult to the honor and dignity of a serviceman, threat to a serviceman).

Punishment in the form of restriction or imprisonment for a term of 3 to 5 years is provided for committing acts against a serviceman who takes measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation, his close relatives or family members, namely:

  • the threat of murder, violence,
  • the threat of destruction or damage to property,
  • insult to the honor and dignity of a serviceman or
  • production and distribution of materials containing such information.

Criminal liability for denial of the russian federation's armed aggression against Ukraine was established

The Criminal Code of Ukraine is supplemented by Art. 436-2 (justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, glorification of its participants).

From now on, it is provided liability in the form of correctional labor for up to 2 years or arrest for up to 6 months, or imprisonment for up to 3 years for the following actions:

  • justification, recognition as lawful, denial of the armed aggression of the Russian Federation against Ukraine, started in 2014, including by:
    • representation of the armed aggression of the Russian Federation against Ukraine as an internal civil conflict,
    • justification, recognition as lawful, denial of temporary occupation of part of the territory of Ukraine;

glorification of:

  • persons who carried out the armed aggression of the Russian Federation against Ukraine, which began in 2014,
  • representatives of the armed forces of the Russian Federation,
  • irregular illegal armed groups,
  • armed gangs and groups of mercenaries created, subordinated, managed, and financed by the Russian Federation,
  • representatives of the occupation administration of the Russian Federation, which consists of its state bodies and structures functionally responsible for the management of the temporarily occupied territories of Ukraine,
  • representatives of self-proclaimed bodies controlled by the Russian Federation, which usurped the exercise of power in the temporarily occupied territories of Ukraine.

For the production and distribution of materials containing such information, it is established liability in the form of restriction or imprisonment for up to 5 years, with or without confiscation of property.

Qualified corpus delicti takes place in the case of a criminal offense convicted:

  • by official,
  • repeatedly,
  • by an organized group,
  • using the media.

Criminal liability for marauding and committing certain crimes against property under martial law has been increased

On March 7, 2022, amendments were made to the Criminal Code of Ukraine, which strengthened the liability for marauding (Article 432 of the Criminal Code of Ukraine) and established a minimum sentence of 5 years in prison.

It should be recalled that marauding is a military offense, the essence of which is to steal on the battlefield things of wounded or killed. There is a difference between marauding and other criminal offenses against property (theft, robbery, burglary, etc.). This difference is in the place of abduction and from whom exactly thing was stolen.

The new law increased the punishment not only for marauding but also for using tragic circumstances, fighting for their own gain. Thus, changes also affected corpus delicti under Articles 185 (theft), 186 (robbery), 187 (robbery), 189 (extortion), 191 (seizure of property through abuse of office) of the Criminal Code of Ukraine. These crimes were supplemented by a qualifying feature – commission under martial law or state of emergency.

Therefore, the responsibility for committing criminal offenses against property in a state of war or emergency has become more severe.

Conditions for exclusion of criminal liability for the use of firearms by civilian persons have been determined

07.03.2022 to ensure the participation of civilians (citizens of Ukraine, as well as foreigners and stateless persons legally staying in Ukraine) in repelling and deterring armed aggression of the Russian Federation and/or other states, the Criminal Code of Ukraine was amended, excluding their liability for the use of firearms against persons who carry out armed aggression against Ukraine, if such weapons are used in the manner and in accordance with the Law of Ukraine “On ensuring the participation of civilians in the defense of Ukraine.”

Criminal liability of an act committed to perform the obligation to protect the fatherland, independence, and territorial integrity is excluded

On March 21, 2022, legislative changes came into force to determine the circumstances under which an action cannot be considered unlawful and provide combat immunity in martial law.

In particular, the Criminal Code of Ukraine was supplemented by Article 43-1 (fulfillment of the duty to protect the Fatherland, independence, and territorial integrity of Ukraine), which provides for the exclusion of criminal liability for an act (act or omission) committed during martial law or during armed conflict and aimed at repelling and deterring the armed aggression of the Russian Federation or the aggression of another country, if it harmed the life or health of the person committing such aggression, or harmed legally protected interests, provided:

  • no signs of torture,
  • no signs of the use of means of warfare prohibited by international law and other violations of the rules or customs of war.

Also, Article 43-1 of the Criminal Code of Ukraine excludes liability for the use of weapons, ammunition, or explosives against persons carrying out armed aggression against Ukraine as well as for damage or destruction of property in this regard.

It is not considered as the fulfillment of the obligation to protect the Fatherland, independence, and territorial integrity of Ukraine to commit an act that:

  • is clearly inconsistent with the danger of aggression or the situation of repulse and deterrence;
  • was not necessary to achieve a significant socially useful goal in a particular situation;
  • endangered the lives of others;
  • created a threat of ecological catastrophe;
  • created the onset of other large-scale emergencies.

Criminal liability for dissemination of information on the location of weapons, equipment, and military servants was established

On March 27, 2022, changes came into force to introduce criminal liability for the dissemination under martial law of information on the direction, movement of weapons and ammunition to Ukraine, including their movement through Ukraine, and dissemination of information on movement or location of Armed Forces of Ukraine or other military formations formed under the laws of Ukraine ( if it is possible identify them on the ground).

The exception is the dissemination of information that is already publicly available by the General Staff of the Armed Forces of Ukraine or the Ministry of Defense of Ukraine or in official sources of the relevant agencies of partner countries.

Depending on the information disseminated, the sentence can range from 3 to 8 years in prison. If the dissemination of information was carried out with the prior conspiracy of a group of persons or for selfish motives, or to provide such information to a state carrying out an armed aggression against Ukraine or an illegal armed group, or if they caused serious consequences, the punishment is 8 to 12 years’ imprisonment.

Criminal liability for the illegal use of humanitarian aid is established

03.04.2022 the Criminal Code of Ukraine was supplemented by Article 201-2 (illegal use of humanitarian aid, charitable donations, or gratuitous aid to receive gain).

According to Art. 201-2 of the Criminal Code of Ukraine there were recognized as a crime intentional acts committed for profit, which are:

  • sales of goods (items) of humanitarian aid or
  • use of charitable donations, gratuitous assistance or
  • concluding other transactions on the disposal of such property,

if the total value of goods/property exceeds 350 non-taxable income of citizens.

The punishment for the above actions is a fine of 2,000 to 3,000 non-taxable incomes of citizens or correctional labor for up to 2 years or restriction of liberty for up to 4 years.

If the crime is committed repeatedly or by prior conspiracy by a group of persons, or an official using an official position, or in a large amount (the total value of goods, gratuitous assistance, or financial assistance in 1000 and more times exceeds the non-taxable income of citizens), the offender faces imprisonment for a term

from 3 to 5 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years and with confiscation of property.

If the crime was committed during martial law or a state of emergency or by an organized group of persons, or in a particularly large amount (the total value of goods, gratuitous assistance or financial assistance in 3000 and more times exceeds the non-taxable income of citizens), the punishment will be imprisonment for 5 to 7 years with deprivation of the right to hold certain positions or engage in certain activities for up to 3 years and with confiscation of property.

Voluntary surrender of weapons and ammunition excludes criminal liability for its illegal wearing, storage, acquisition

Starting from 03.04.2022 the person who voluntarily surrender over to authorities:

  • firearms (except smooth-bore hunting weapons), ammunition, explosives or explosive devices,
  • daggers, Finnish knives, fists, or other melee weapons

(which were with such a person without the permission provided by law) is not subject to criminal liability under Art. 263 of the Criminal Code of Ukraine (illegal handling of the weapon, ammunition, or explosives).

Criminal liability for assistance to the aggressor state

On April 23, 2022, the Criminal Code of Ukraine was supplemented with Article 111-2 “Assistance to the aggressor state”.

Thus, criminal liability is provided in the form of imprisonment for a term of 10 to 20 years with deprivation of the right to hold certain positions or engage in certain activities for a term of 10 to 15 years and with or without confiscation of property for intentional actions to help the aggressor state (assistance), armed formation and/or occupation administration of the aggressor state, committed by a citizen of Ukraine, a foreigner or a stateless person, except for citizens of the aggressor state, to harm Ukraine by:

  • implementation or support of decisions and/or actions of the aggressor state, armed formations and/or occupation administration of the aggressor state;
  • voluntary collection, preparation and/or transfer of material resources or other assets to the representatives of the aggressor state, its armed forces and/or the occupation administration of the aggressor state.

What has changed in criminal law and procedure in 2022?

The Constitutional Court of Ukraine recognized as unconstitutional one of the grounds for closing the criminal proceedings

The Constitutional Court of Ukraine recognized as unconstitutional the provisions on the closure of criminal proceedings in the event of entry into force of the law, excluding criminal liability

On June 8, 2022, the Constitutional Court of Ukraine considered the case on the constitutional complaint regarding the constitutionality of paragraph 4 of part 1 of Article 284 of the Criminal Procedure Code of Ukraine (hereinafter – the Code) declaring the disputed provision of the Code unconstitutional.

Thus, according to paragraph 4 of the first part of Article 284 of the Code, criminal proceedings are closed if “a law came into force by which criminal liability for an act committed by a person has been abolished.”

Article 284 of the Code provides an exhaustive list of grounds for closing criminal proceedings. They, in turn, are classified according to several criteria.

All grounds for closing criminal proceedings are divided into rehabilitative and non-rehabilitative. Accordingly, the abolition of a certain crime in the legislation as a ground for closing the proceedings is not a rehabilitative circumstance. Thus, the closure of criminal proceedings based on non-rehabilitative grounds presupposes a statement of the fact that a person has committed a criminal offense, which leads to adverse consequences for such a person, in particular, calls into question his innocence.

At the same time, the closure of a criminal proceeding without the consent of the person restricts his/her right to protection from accusations of committing acts incriminated to him/her.

Thus, it may happen that a person will be considered to have been prosecuted, even though the very fact of committing the relevant act and its investigation may not have taken place.

At the same time, the wording of paragraph 4 of the first part of Article 284 of the Code “committed by a person” actually indicates the indisputable guilt of such a person in committing an act that was considered a criminal offense before its decriminalization. In such cases, a person may be condemned, negatively perceived by society, lose his/her business reputation, and have a negative impact on professional activities.

This provision of the Code violates such principles as the presumption of innocence, irreversibility of time (non-retroactivity) of criminal law, nullum crimen, nulla poena sine lege (“no law – no crime, no law – no punishment”) principles, the right to state one’s position and the right to a fair trial, as the person in respect of whom criminal proceedings have been closed is deprived of the opportunity to prove his/ her innocence in a lawful manner.

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