No retroactivity

"There is criminal liability for forging documents used during the border crossing, bribery, and evasion of mobilization,” he said, noting that men who leave Ukraine after receiving a signed summons may face imprisonment for three to five years.

“But illegal border crossing is subject to a fine in most cases,” Klymenko says. “That’s what we want to tackle. But I repeat, we’re only discussing ideas. There is no definitive solution on the table yet.”

The minister added that if the law is passed, it will not have retroactive effect.

"Of course, it will adhere to the constitutional norm,” he says. “Even noble intentions should not serve as a basis for violating the law. At the same time, we will continue to look for legal means of influence on those who have already illegally crossed the border and left the country during a time of hardship."

Klymenko considers that obtaining information about the illegal fugitives would not be difficult.

"Some of them will eventually return to Ukraine; some will turn to Ukrainian embassies in other countries for new documents or assistance,” he says. “Then the authorities can consider verifying whether there were legitimate grounds for their departure abroad."

He continued by saying that during the development of the bill, Ukraine will study practices in other countries.

"For example, Israel has a fairly strict approach to monitoring conscripts," he says.

Not the first attempt

Members of the Verkhovna Rada have, however, voiced doubts regarding the introduction of sanctions against illegal fugitives.

Klymenko's initiative is not the first attempt at strengthening legal penalties for conscripts who left Ukraine since the start of the war, or even compelling their return.

Andrii Osadchuk, First Deputy Chairman of the Committee on Law Enforcement Activities and a member of the Holos (“Voice”) political party, recalled that the Ukrainian parliament registered a bill last year, No. 7171, which proposed criminal liability for illegal border crossing during wartime, with an exemption for those who returned within 10 days. However, since criminal law does not have retroactive effect, this mechanism would not have prompted the fugitives to return. Consequently, the bill was withdrawn.

Social media or Interpol?

Additionally, in April of last year, lawmakers registered draft law No. 7268, which proposed amending the Criminal Code of Ukraine to include an article on criminal liability for conscripts who illegally cross the border during a state or war. The draft law prescribed penalties ranging from fines to imprisonment for a period of three to five years.

In Feb. 2023, the draft law was included in the session agenda, but the relevant committee has still not reported on it.

In April 2022, the authors of another draft law, No. 7265, proposed establishing criminal liability for not returning to Ukraine after the declaration of a state of war, with a potential prison sentence of five to 10 years. However, on Sept. 6, 2022, the draft was dropped.

In my opinion, it's all just a stunt.

Osadchuk also emphasizes that the Ministry of Internal Affairs has so far not approached the committee regarding the preparation of a new draft law.

Another member of the committee, a representative of the Holos party, Oleksandra Ustinova, is skeptical about the likelihood of any such initiative being adopted.

“First of all, there is no mechanism to identify those who illegally left the country if they have documents indicating their presence in Ukraine,” she says. “Will they be tracked through social media and Instagram photos? Should an international search be launched? It is unrealistic. Or should requests be made through Interpol? I doubt that such a draft law will materialize. Everyone on the committee was surprised by the minister's statement. In my opinion, it's all just a stunt."

Accountability matters

According to lawyer Yuriy Bauman, criminal liability for individuals who left the country during a state of war and failed to return without valid justification should be strengthened.

"As of now, Ukrainian legislation only fines individuals for illegal border crossing. This fine can only be imposed if the person returns,” Bauman says. “But if the person does not return to Ukraine, it is practically impossible to hold them accountable.”

Bauman suggests utilizing existing sanction mechanisms for the offenders, noting for example that there is a system of accountability in place if divorcees have not paid alimony. They are restricted from traveling abroad, driving vehicles, using firearms, and so on.

"In my opinion, we should implement a similar system of rights limitations for individuals who left the country during a state of war under certain conditions and failed to return," he said. "I understand that there will be strong objections against such restrictions, citing the European Court of Human Rights and saying it constitutes human rights violations. But those who work and pay taxes in Ukraine, and those who have lost almost everything in this war, should be involved in such a discussion. I believe that the voices of the latter will be more convincing."