Important draft laws. Issue 19: Creation of military police and prosecutor's office, economic reservation, and abolition of family-type children's homes

Important draft laws. Issue 19: Creation of military police and prosecutor’s office, economic reservation, and abolition of family-type children’s homes

Photo: unsplash.com / Romain Dancre
18 June 2024
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A review of draft laws registered from May 27 to  June 9, 2024.

During this period, 46 draft laws were registered: 1 from the President, 10 from the government, and 35 from MPs. As always, service members were at the center of legislators’ attention. The registered draft laws concerned creating military police, introducing economic reservation for those eligible for military service, granting the status of “war participant” and “person with special merits to their homeland ” (posthumously). An initiative was also registered to reduce punishment for desertion if the person admits guilt and returns to the unit. Among other topics were the abolition of family-type children’s homes, a new state climate policy, and a ban on obscene language in advertising.

Ratification of Ukraine Facility

The sole presidential bill concerns ratifying the Framework Agreement between Ukraine and the European Union on financing Ukraine under the Ukraine Facility instrument. Ratification entails Ukraine committing to fulfill the program’s conditions and receiving financing amounting to EUR 50 billion (including EUR 5.27 billion in grants and the rest in favorable loans) from 2024 to 2027. In 2024, Ukraine expects to receive EUR 16 billion under this program. Among other commitments, Ukraine pledges to ensure transparency and control over the use of EU funds, provide regular reporting on fund usage, comply with EU sanctions requirements, and combat corruption. We have previously discussed the reforms necessary to secure foreign funding here and here.

Creating the military police

Bills 6569-d and 6570-d propose creating military police (MP) instead of the military law enforcement service, granting them powers to conduct operative search measures (such powers were previously absent in the service).

During martial law, the military police can be involved in pre-trial investigations of military criminal offenses. Police officers would have investigative powers (based on resolutions of prosecutors or pre-trial investigation authorities, they would be able to conduct investigative and search activities, including covert ones). In combat zones, such military personnel would be able to independently document and preserve evidence and detain individuals without a court order if there is a risk that the suspect might change the scene or prevent access to them. Investigators or prosecutors would record such actions in the Unified Register of Pre-trial Investigations based on data compiled by military personnel. 

The management system of the institution would become more apparent. While the Minister of Defense oversees law enforcement services through the Armed Forces Commander-in-Chief, their roles would be separated under the proposed military police structure. During peacetime, the activities of the military police would be directed by the Cabinet of Ministers through the Minister of Defense. In times of war or emergency, leadership and coordination would be under the Army Commander-in-Chief. Unlike the existing law on the law enforcement service, the draft includes that the Minister or the Commander-in-Chief would nominate a candidate for the position of Chief of the Military Police for approval by the President. Like the current law enforcement service, the military police would become a subdivision of the Armed Forces of Ukraine with a personnel size of up to 1.5% of their total strength.

However, the people’s deputies almost immediately withdrew draft laws 6569-d and 6570-d from consideration, citing the need for additional consultations and discussions. In particular, the Speaker of the Verkhovna Rada, Ruslan Stefanchuk, stated at a briefing in Parliament that “the creation of military justice should not begin with the establishment of a corresponding police force but with a ‘general picture’… there must be fair and high-quality military justice… it involves a whole complex of institutions: military police, corresponding prosecutors, courts, individual lawyers, and so on.”

Unlike Bill 6559-d, a new law canceling previous ones, Bill 11306, proposing the creation of the Military Police in Ukraine, suggests amendments to over 30 regulations. Specifically, it establishes the Military Police of Ukraine as a central executive authority (in contrast to bill 6559-d, where the military police is a military formation within the Ministry of Defense). The Ministry of Defense would coordinate the activities of the Military Police, but the MP would be accountable to the Verkhovna Rada. The Verkhovna Rada would appoint the Chief of the Military Police upon the Prime Minister’s nomination. The proposed size of the Military Police remains the same as in previous draft laws.

The difference in the institution’s name in both draft laws (Military Police and War Police) does not imply functional differences; the distinction is merely in the name.

Furthermore, the bill also provides for creating a Specialized Military Prosecutor’s Office. 

Note: The military prosecutor’s office operated in Ukraine as part of the prosecutor’s office from 1991 to 2012 and 2014 to 2019. In 2019, Volodymyr Zelensky abolished the military prosecutor’s office.

The Prosecutor General would establish the Specialized Military Prosecutor’s Office. He would also appoint the Chief Military Prosecutor, who would serve as his deputy. The number of employees in the prosecutor’s office would amount to 0.3% of the total personnel of military formations.

Bill 11307 outlines procedures for suspending key military and law enforcement leaders from office, including the Minister of Defense of Ukraine, the Commander-in-Chief of the Armed Forces of Ukraine, and other high-ranking officials. The President would have the authority to dismiss these individuals upon the recommendation of the Chief Military Prosecutor. 

The military police would investigate the following criminal offenses:

  • Creation of unauthorized armed groups or formations (Article 260 of the Criminal Code), evasion of conscription for military service (Articles 335-337 of the Criminal Code), violations of military service regulations (Chapter XIX of the Criminal Code of Ukraine);
  • Offenses committed on the territory of military units and military formations.

The prosecutor of the Specialized Military Prosecutor’s Office would have the right to refer cases of collaboration (Article 111-1), obstruction of the Armed Forces of Ukraine (Article 114-1), including dissemination of information about the movement or location of the Armed Forces (Article 114-2), war propaganda (Article 436), its incitement (Article 437), and breaches of the laws and customs of war (Article 438) to the jurisdiction of the Military Police.

The Specialized Military Prosecutor’s Office would be responsible for cooperation with the International Criminal Court.

Reducing the liability of military members for desertion

Bill 11322 proposes exempting service members who desert for the first time during martial law from criminal liability under Articles 407 and 408 of the Criminal Code. 

This exemption is contingent upon the service members’ sincere repentance and willingness to return to military service. The military unit commander must provide written consent for the continuation of service. 

In addition, the bill allows individuals who have committed robbery, brigandage, or extortion and are currently in pre-trial detention or under house arrest to request the cancellation of these preventive measures to enlist in military service.

Economic reservation

Bill 11308 proposes automatic reservation for those eligible for military service who are officially employed or engaged in entrepreneurial activities and pay taxes amounting to at least the minimum wage in Ukraine (UAH 8000 as of June 2024). 

Reservation would occur automatically, without the need for separate applications. Those eligible for military service would provide information about their tax payments through electronic means or other available methods (mail, in person). 

The Cabinet of Ministers of Ukraine would designate the authority responsible for collecting information about tax payments and transmitting this data to the territorial recruitment centers (TRCs).

Reduction of bureaucracy for family members of deceased service members

Bill 11314 aims to recognize citizens who died as a result of participating in operations to repel and deter armed aggression against Ukraine as individuals with special merits to their homeland.

The status of individuals with special merits to their homeland provides additional benefits such as pension supplements, tax breaks, priority medical care, free medication provision, exemption from rent for housing, and payment for utilities for such individuals and their family members.

The project proposes including those who served or were called up during mobilization to the Armed Forces into the list of war participants. War participants include those who served in the military in rear positions or worked in defense enterprises during the war.

The Cabinet of Ministers would establish the procedure for issuing certificates to family members of deceased defenders. Citizens who wish to obtain such a certificate could apply, and the authorized body would perform all necessary technical (bureaucratic) work. This body would not have the right to demand from citizens documents already being held by other state bodies or registries; instead, it must obtain these documents through interdepartmental cooperation. Other state agencies and registries must provide the requested records or a justified reason for refusal. 

New climate policies

Government Bill 11310, “On the Fundamental Principles of State Climate Policy,” aims to promote low-carbon development, achieve climate neutrality, adapt to climate change, and fulfill international commitments in this area.

The project defines the principles of climate planning at various levels: national, regional, and local. Specifically:

  • The Verkhovna Rada of Ukraine establishes the principles of state climate policy, exercises parliamentary oversight, and reviews reports on the government’s activities within the climate policy framework.
  • The Cabinet of Ministers coordinates and prioritizes climate policy, develops and implements legislative acts on climate issues, and designates responsible bodies for developing strategies and plans.
  • Central executive authorities shape and implement state climate policy within their spheres and develop sectoral plans to reduce greenhouse gas emissions.
  • Local state administrations develop and implement regional plans for emission reduction and climate change adaptation and report on their implementation.
  • Local self-government bodies develop and implement local climate plans and monitor and control measures to mitigate climate change.

The above bodies collaborate to formulate and implement comprehensive climate policy to reduce greenhouse gas emissions and adapt to climate change.

Prohibition of profane language in advertising

Bill 11304 prohibits placing advertisements containing derogatory, vulgar, obscene, or other non-normative language and expressions similar to swearing or containing language that may be confused with swearing.

For violations of this prohibition, the following fines are stipulated for advertisers and distributors of advertisements:

  • For individuals, fines range from 50 to 70 non-taxable minimum incomes (NTMIs), approximately UAH 850 to 1190, for the first offense, and from 70 to 150 NTMIs, approximately UAH 1190 to 2550, for repeat offenses within a year.
  • For managing advertisers and distributors, fines range from 100 to 250 NTMIs, approximately UAH 1700 to 4250, for the first offense, and from 200 to 350 NTMIs, approximately UAH 3400 to 5950, for repeat offenses within a year.

According to Bill 11304, the State Service of Ukraine on Food Safety and Consumer Protection (Derzhprodspozhyvsluzhba) would enforce this prohibition on vulgar, obscene, or otherwise non-normative language in advertisements. However, the bill does not specify particular criteria or methods Derzhprodspozhyvsluzhba would use to determine whether words are considered vulgar. 

Abolishing family-type children’s homes

Bill 11311 proposes eliminating the form of childcare known as “family-type children’s homes.” All such facilities would be converted into foster families.

A foster family is a family that voluntarily takes in and lives with orphaned children, children deprived of parental care, and, in some instances, children who are left without parental care.

According to the project, the maximum number of orphaned children and children deprived of parental care in a foster family should not exceed six, except in cases where all children are siblings. The number of children in family-type children’s homes cannot exceed ten (including biological children).

The bill does not specify how the transition to the foster family model would occur for existing family-type children’s homes with more than eight children.

The project also pays special attention to orphaned children who require specific care conditions (children with developmental disabilities, disabilities, chronic illnesses, refugee status, special educational needs, etc.). Specialized foster families would be established for them. Following the law’s adoption, the government would be tasked with developing regulations for such families, which currently do not exist.

As the author of this legislative initiative, the government believes that adopting this project “will enable foster parents to provide more individual attention to each child and ensure the care, upbringing, and development needs of foster children.”

For corruption, besides criminal and administrative liability, there would also be disciplinary responsibility

Bill 11293 proposes a new mechanism to hold corrupt individuals accountable through disciplinary measures: courts that handle such cases must send a copy of the final and enforceable decision to the corrupt individual’s employer. This would allow the employer to consider disciplinary action against the guilty party.

Trading timber exclusively on exchanges

Bill 11318 proposes mandatory trading of timber and timber products on exchanges, with exceptions including: 

  • Meeting national security and defense needs and addressing the consequences of emergencies and natural disasters.
  • Entities such as government bodies, local self-government bodies, territorial communities, law enforcement agencies, and state-owned enterprises procure goods, works, and services under public procurement laws.
  • Individual construction, building repairs, and heating for private individuals, with the government determining the allowable extent of such purchases.
  • Imported raw materials intended for free circulation.

Exchanges would be required to provide information on timber trading to a unified state electronic timber accounting system (the Cabinet of Ministers would determine the main requirements for the functioning of information systems in the forestry sector and access to information).

Timber processors must also record information about manufactured timber products in the electronic accounting system. 

The bill aims to prevent private entrepreneurs from legalizing illegally sourced timber and to ensure transparency in the timber market.

Regulation of the free transfer of property to religious organizations

Bill 11324 proposes allowing the transfer of cult buildings and property owned by the state to religious organizations for free use. The project aims to resolve potential conflicts between the Law of Ukraine “On Freedom of Conscience and Religious Organizations,” which permits religious organizations to use cult buildings for free, and the Law of Ukraine “On Lease of State and Municipal Property,” which prohibits the unrestricted use of state property.

Regulation of vehicle rental by individuals

Currently, the Civil Code of Ukraine requires that all lease and loan agreements for vehicles (cars, bicycles, trailers, boats, etc.) concluded with individuals should be notarized.

Bill 11302 proposes that only lease agreements for vehicles lasting three years or more require a written contract that must be notarized. This change aims to simplify the process of leasing and borrowing vehicles. 

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