Contract or colony: new opportunities for defendants in time of war
8 May 17:16
The Armed Forces of Ukraine may see an increase in the number of defendants, especially corrupt officials, who have long used the opportunity to change the cramped walls of a pre-trial detention center or round-the-clock house arrest for an apartment by wearing a military uniform. However, whereas previously such persons had to be mobilized, now the accused can sign a contract with the Armed Forces of Ukraine on their own.
The main thing is that in this case the criminal process is suspended. Komersant found out who and how can postpone the sentence.
The Verkhovna Rada Committee on Law Enforcement recommended that the parliament adopt Bill 13260 as a whole. In particular, it proposes to expand the list of grounds for suspending court proceedings, including contract military service.
The MPs propose to supplement Article 335 of the CPC with a provision that if the accused enters into a contract for military service, the court shall suspend the trial of such an accused until martial law is terminated or lifted or the accused is discharged from military service, and continue the trial of other accused if it concerns several persons. The exception is if the accused, called up for mobilization or contract service, does not object to the continuation of the trial and is able to be present in court.
Instead of a dock, a trench
Exactly three years ago, on May 1, 2022, Law No. 2201-IX of 14.04.2022 came into force, according to which subparagraph 12 of paragraph 1 of part 1 of Article 335 of the CPC “Suspension of court proceedings” was amended. The amendments provide that: “if the accused evades appearing in court or suffers from a mental or other serious long-term illness that makes it impossible for him to participate in the court proceedings, or was called up for military service during mobilization for a special period, the court suspends the proceedings against such accused until he is found, recovered or discharged from military service and continues the proceedings against other persons if several persons are charged”.
That is, if the accused was mobilized, the trial will resume after demobilization. However, if he or she has signed a contract, he or she may not appear in court until the end of martial law or dismissal from the army. The defendants have a wider choice: mobilization or contract. The former head of the State Fiscal Service, Roman Nasirov, who is accused of taking a bribe of UAH 722 million from businessman Oleg Bakhmatyuk, and the defendant in the gas case, ex-MP Onyshchenko, who is accused of allegedly illegally ordering the postponement of rent for the use of subsoil, will have a second chance to temporarily “freeze” criminal proceedings.
On April 9, it became known that Nasirov had mobilized to the Armed Forces on the eve of the verdict in the gas case. It was reported that he would serve as a sapper in a military unit. However, after a media outcry on the night of April 10, the Military Law Enforcement Service of the Armed Forces of Ukraine announced an internal investigation into his conscription and the cancellation of the mobilization order. The court again extended Nasirov’s obligations not to leave Kyiv region and to wear an electronic bracelet. It failed to stop the process.
Oleksiy Tandyr, a judge of the Makariv District Court of Kyiv Region, who ran over a National Guard soldier to death, was also unlucky. A year ago, he requested to be released from custody for mobilization to the 163rd Battalion of the Nizhyn terrorist defense unit as a deputy company commander for moral and psychological support. Since he was facing a real sentence, and stopping the trial could save him from the colony due to the possible loss of the statute of limitations, he hoped to take advantage of the opportunity. However, the court continued the trial, and the commander who was ready to recruit him was suspended.
More than 11,000 mobilized and more to come
One way or another, almost 11,000 defendants managed to avoid criminal liability due to mobilization from May 2022 to 2024 – for theft, drugs, road accidents, bodily harm, premeditated murder, and other crimes, including corruption – misappropriation or embezzlement of property, bribery, abuse of office, etc. And this year there were several thousand more of them.
“By the way, the lion’s share of the mobilized are accused of theft. And while the former end up in combat brigades, numerous investigations by anti-corruption activists show that officials, judges and other respected people, by a strange coincidence, serve in the rear – some in the military training center, some in a warehouse, some in a training center. Smart people do everything possible to delay the process and postpone the verdict, or even close the case. If the trial lasts 10 years, the person is released from liability under Article 49 of the Criminal Code of Ukraine,” says lawyer Valentyn Serov.
And, as the lawyer adds, in order for the defendant to be mobilized, he has to try very hard to find the right people, negotiate with military units directly or involve the staff of the military commissariat. And if the mobilization is accompanied by a contract, the scheme is even simpler. The Armed Forces are always interested in contract soldiers, which means that several thousand more criminal cases will be suspended, and who knows – maybe the statute of limitations will expire and the cases will be closed.
Reference
The Ministry of Justice said that 20% to 30% of the 37,000 convicts could potentially join the Armed Forces. More than 8,300 convicts are already serving, and another 1,000 applications are under consideration. 100 women have been mobilized.
Author: Alla Dunina
