Amendments to the criminal code of Ukraine and criminal procedural code of Ukraine from february to october 2023

Several articles on terrorism in the Criminal Code of Ukraine have been amended.

On April 28, 2023, a law adopted to bring Ukrainian legislation in line with the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism came into force. It introduces some amendments to the articles of the Criminal Code of Ukraine (hereinafter – CC of Ukraine) on liability for the crime of terrorism.

Thus, the disposition of Article 258-4 of the CC of Ukraine is expanded and establishes liability for passing training to commit a terrorist act, which means receiving instructions, including the acquisition of knowledge or practical skills, from another person on the preparation or use of explosives, firearms or other weapons or harmful or dangerous substances, or other specific methods or means to perform activities that are considered to be terrorist under the law.

However, a person shall be discharged from criminal liability for passing training to commit a terrorist act if he or she voluntarily refused to undertake it, informed law enforcement agency, and contributed to the prevention or suppression of terrorist activities related to the crime committed. 

Also, Article 258-4 of the CC of Ukraine introduces a qualified offense, namely recruitment, arming, training of a person to commit a terrorist act, as well as the use of a person for this purpose, passing terrorist training, committed by a person who exercises criminal influence or a person who is in the status of an entity of increased criminal influence, including the status of a “thief-in-law”.

Additionally, a new corpus delicti has been introduced in Article 258-6 of the CC of Ukraine, specifically crossing the state border of Ukraine for terrorist purposes. This crime shall be punishable by imprisonment for a term of four to six years with or without forfeiture of property. 

Article 258-6 of the CC of Ukraine also contains several qualified corpus delicti. In particular, crossing the state border of Ukraine for terrorist purposes, committed repeatedly or committing this crime through abuse of office, shall be punishable by imprisonment for a term of five to eight years with or without forfeiture of property. Moreover, committing the aforementioned crime during a state of emergency or martial law shall be punishable by imprisonment for a term of eight to twelve years with forfeiture of property.

The court, closing criminal proceedings, is obliged to consider the opinion of the accused. 

On August 11, 2023, a law came into force that mandates the court to consider the accused’s opinion on closing criminal proceedings if the court determines grounds for closure due to the statute of limitations expiry.

Inconsistencies in the punishment of specific criminal offenses have been eliminated.

On August 11, 2023, a law came into force that harmonized the provisions of the General Part of the CC of Ukraine and the sanctions of several articles of the Special Part of the CC of Ukraine. The amendments mainly concern the terms of restriction of liberty, forfeiture of property, and deprivation of the right to occupy certain positions or engage in certain activities.

It is well known that Chapter X of the CC of Ukraine establishes the following rules for imposing these penalties:

• forfeiture of property shall be imposed for grave and especially grave mercenary crimes, as well as for crimes against the foundations of national security of Ukraine and public safety (part 2 of Article 59 of the CC of Ukraine);
• deprivation of the right to hold certain positions or engage in certain activities as an additional punishment (except in cases stipulated by the Law of Ukraine “On Lustration”) shall be imposed for a term of 1 to 3 years (part 1 of Article 55 of the CC of Ukraine);
• restraint of liberty shall be imposed for a term of one to five years (part 2 of Article 61 of the CC of Ukraine).

In this regard, several articles in various sections of the CC of Ukraine have been amended:

• in the sanction of part 4 of Article 159-1 of the CC of Ukraine (violation of the procedure for financing a political party, election, or referendum campaigning), the term of imprisonment has been changed from three years to an interval from two to five years;
• forfeiture of property has been removed from the sanction of part 2 of Article 201-2 of the CC of Ukraine (illegal use of humanitarian aid, charitable donations, or free aid for profit);
• in the sanction of parts 1 and 2 of Article 206 of the CC of Ukraine (obstruction of legitimate economic activity), the potential term of deprivation of the right to hold certain positions or engage in certain activities has been changed from an interval of two to four years to a term of up to three years;
• in the sanction of part 1 of Article 213 of the CC of Ukraine (violation of the procedure related to operations with scrap metal), the term of restriction of liberty has been increased from “up to one year” to “up to two years”;
• in the sanctions of part 4 of Article 220-1 of the CC of Ukraine (violation of the procedure for maintaining a database of depositors of knowingly false information) and part 1 of Article 220-2 of the CC of Ukraine (falsification of financial documents and reports of a financial institution, concealment of insolvency of a financial institution or grounds for revocation (cancellation) of a license of a financial institution), the maximum term of restriction of the right to hold certain positions or engage in certain activities has been reduced from ten years to three years;
• the punishment in sanction of part 2 of Article 271 of the CC of Ukraine (violation of the occupational safety law) has been changed from correctional labor for up to two years or restraint of liberty for up to five years to restraint of liberty for a term of two to five years;
• in the sanction of Article 365-2 of the CC of Ukraine (abuse of power by persons providing public services), the maximum term of deprivation of the right to hold certain positions or engage in certain activities has been reduced from ten years to three years.

Article 190 of the CC of Ukraine has been amended with a qualified corpus delicti of fraud.

On August 11, 2023, a law came into force supplementing Article 190 of the СС of Ukraine with a qualified form of fraud, namely fraud committed in a state of martial law or a state of emergency, which caused significant damage to the victim.

This crime shall be punishable by a fine of four thousand to eight thousand tax-free minimum income or imprisonment for a term of three to five years.

The calculation of the pre-trial investigation period during martial law has been amended.

On August 24, 2023, a law came into force that establishes a new procedure for calculating the pre-trial investigation period in criminal proceedings in which no person has been notified of suspicion, i.e., in the so-called factual criminal proceedings. 

Therefore, the pre-trial investigation period is not calculated in criminal cases concerning certain crimes against peace, security of mankind, and international legal order, namely:

• planning, preparation, initiation, and waging of aggressive war (Article 437 of the CC of Ukraine);
• violation of the rules of warfare (Article 438 of the CC of Ukraine);
• use of weapons of mass destruction (Article 439 of the CC of Ukraine);
• genocide (part 1 of Article 442 of the CC of Ukraine).

In addition, the pre-trial investigation period is not calculated in the case of joining criminal proceedings if the pre-trial investigation in at least one of them is conducted in connection with the aforementioned crimes.

Also, under the Criminal Procedural Code of Ukraine (hereinafter – CPC of Ukraine), the calculation of the pre-trial investigation period in factual criminal proceedings, information about which has been entered into the Unified Register of Pre-trial Investigations (hereinafter – the URPTI) before and after the date of martial law, is different.

Thus, in criminal proceedings, information about which has been entered into the URPTI or a decision to initiate a pre-trial investigation has been made under Article 615 of the CPC of Ukraine from the introduction of martial law until its termination or revocation, the pre-trial investigation period extends until the day of serving a person with a notice of suspicion, totaling 30 months. It is important to note that this provision also does not apply to crimes under Articles 437-439 and part 1 of Article 442 of the CC of Ukraine.

However, the time period from the date of introduction of martial law until the date of its termination or cancellation is not included in the general pre-trial investigation periods under part 2 of Article 219 of the CPC of Ukraine in criminal proceedings, information about which has been entered into the URPTI before the day of introduction of martial law.

Probation supervision has been introduced as a new type of punishment.

On September 26, 2023, the President of Ukraine signed a law amending Article 51 of the CC of Ukraine. The law shall come into force in 6 months, i.e., on March 28, 2024.

Probation supervision shall involve the application of supervisory, social, and educational measures without isolation from society for a term of one to five years (for minors for a period of one to two years) with the following obligations:

• to appear periodically for registration to the authorized probation agency;
• notify the authorized probation authority of any change of place of residence, work, or study;
• not to leave the territory of Ukraine without the consent of the authorized probation agency.

To fulfill the purpose of this type of punishment, depending on the circumstances of the case and the probationer, the court may additionally impose other obligations on the convict, including completion of a probation program, undergoing treatment for drug or alcohol addiction, etc.

Notably, probation supervision shall be imposed only for minor crimes and minor offenses, including:

• intended grievous bodily injury inflicted in excess of necessary defense or in excess of measures necessary to apprehend an offender (Article 124 of the CC of Ukraine);
• intended minor bodily injury (Article 125 of the CC of Ukraine);
• battery and torture (Article 126 of the CC of Ukraine);
• domestic violence (Article 126-1 of the CC of Ukraine);
• theft (parts 1 and 2 of Article 185 of the CC of Ukraine);
• robbery (part 1 of Article 186 of the CC of Ukraine);
• hooliganism (part 1 of Article 296 of the CC of Ukraine);
• fraud (part 1 Article 190 of the CC of Ukraine), etc.

In most amended articles, probation supervision has replaced arrest or restriction of liberty. However, before the law comes into force, for convicts serving a sentence of arrest in detention centers, the unexpired part of their sentence must be replaced by another type of punishment under Article 72 of the CC of Ukraine.

The Section XIX of the CC of Ukraine concerning military criminal offenses has been amended.

On October 5, 2023, a law came into force to enhance the legislation regarding criminal liability for military criminal offenses related to violations of the rules of driving or vehicle operation vehicles, flights or preparation for them, and navigation.

Hence, the sanction of Article 415 of the CC of Ukraine has been amended with alternative punishments, namely:

• violation of the rules related to driving or vehicle operation, which caused medium gravity or grievous bodily harm or death to the victim, shall be punishable by service restriction for up to one year, or restriction of liberty for a term of one to three years, or detention in a disciplinary battalion for up to one year, or imprisonment for a term of one to five years;
• the aforementioned act that caused the death of several persons shall be punishable by service restriction for up to two years, or restriction of liberty for a term of three to five years, or detention in a disciplinary battalion for up to two years, or imprisonment for a term of five to ten years.

In addition, Article 416 of the CC of Ukraine, which establishes liability for violation of rules related to flights, flight training, or preparation for them, has been also significantly amended. Thus, breaching of flight and aircraft operation rules that caused a victim grievous bodily injury or heavy pecuniary damage, is now considered criminal offenses.  Article 417 of the CC of Ukraine on violation of the rules of navigation has also been amended in the same way.