MEMBERS OF THE PARLIAMENT WANT TO PUNISH THE TERRITORIAL CENTER OF RECRUITMENT AND SOCIAL SUPPORT AND MEMBERS OF THE MILITARY MEDICAL COMMISSION. WHAT CHANGES ARE PROPOSED BY THE VERKHOVNA RADA

Alyona Michurina comment for LB.ua

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The Internet, numerous telegram channels, and even official news have repeatedly reported scandals about “busification,” “miraculous” treatment by the MCC when the patient was completely healthy, and other violations by employees of the MMC and the TCC and SP.

Unfortunately, in our country, the responsibility of conscripts is unavoidable, but civil servants are not afraid of anything, as there is currently no clear mechanism of responsibility for the above-mentioned illegal actions. And even if after a long time the victim defends his right in court, it will not make it easier for him.

Against the backdrop of an ongoing series of scandals involving “busking,” “cover-ups” and large-scale corruption, this draft law is an attempt by the authorities to demonstrate at least some justice, because at the moment we are actually playing a one-way game - the law provides for punishment for persons liable for military service and military personnel, but for officials who violate it, it mostly contains general phrases. However, how these norms will work is a big question, as it often happens that when a law is adopted, we have a good goal, but the result is another “dead” legal norm.

First, such criminal acts are usually complex. They may include document forgery, forgery in office, obtaining illegal benefits, money laundering, interference with information systems, etc. Accordingly, the investigation of such crimes is a large-scale and painstaking job that is unlikely to be handled by a single investigator.

Secondly, proving the intent of the TCC and SP employees and MMC is problematic in such cases. Courts usually require direct evidence of such awareness, such as records of a person's discussion of the circumstances of preparation for the crime, its actual commission, as well as its concealment or disguise, the person's own notes on planning the crime, etc. At the same time, obtaining such evidence is often either significantly complicated or impossible. 

Therefore, the prosecution is forced to limit itself to circumstantial evidence, for example, artificially creating preconditions for committing a crime, encouraging subordinates or related persons to participate in the commission of a crime or not to prevent it, fake self-disengagement from controlling the legality of actions, behavior of a person after committing a crime (concealing a crime, obstructing an investigation, assisting other defendants, etc.) Will this be enough to prove a person's guilt “beyond a reasonable doubt”? The court practice will show. 

Third, crimes of this kind are usually committed by several individuals. If we are talking about a court case, it is quite problematic to even gather all the defendants, their defense lawyers and the prosecution at the same time and place. This factor can lead to a significant delay in the consideration of such cases and, as a result, to avoidance of criminal liability, as the case may be closed due to the expiration of the statute of limitations. 

And fourth, the wording of Article 426-2 “Violation by a military official of the procedure for conscription (acceptance) of citizens for military service” is problematic, given that such a procedure is currently defined by several resolutions of the Cabinet of Ministers of Ukraine, the main of which is Resolution No. 560 of 16.05.2024, which approves the procedure for conscription of citizens for military service during mobilization for a special period. An analysis of court decisions made by the courts in cases involving claims filed by persons liable for military service against TCC and SP for deferment of conscription shows that the provisions of the said resolution contradict the provisions of the Law of Ukraine “On Mobilization Preparation and Mobilization”. 

Thus, when deciding on the same issue of granting the deferral, the officials of the TCC and SP will face an interesting dilemma: to comply with the resolution and violate the law, or to be guided by the law and potentially receive criminal proceedings. Moreover, if the court finds that the actions of the TCC and SP officials in not granting the extension are unlawful, it may also lead to criminal liability for such officials.

So we can see that the adoption of this law can either really improve the situation with “busification” and “express” preliminary medical examinations, as a result of which even sick people recover quickly, or it can become an exclusively populist norm that will not be implemented in practice. Therefore, we will get the actual results only empirically, that is, practice will tell!