Army instead of jail

Consideration of almost 11,000 criminal cases was suspended due to mobilization of the defendants
07 May 2024

On Thursday, April 4, during a regular court session, the judge of the Makariv District Court of Kyiv Region, Oleksiі Tandyr, accused of a fatal road accident і the High Council of Justice deprived him of his judicial powers only on April 24, 2024; before that, while in pre-trial detention, he received a monthly salary of 63,000 UAH.  asked to be released from custody so that he could mobilize. To support his words, he provided a letter from the 163rd territorial defense battalion from Nizhyn stating that they were ready to hire him as deputy company commander for moral and psychological support.

What Tandyr faces is real prison time. The consideration of his case would have been suspended until his demobilization, the date of which is still unknown, and during this time, the statute of limitations would probably have expired. However, the court left him in the pre-trial detention center and continued the trial on the merits. Instead, it turned out that the letter from the military suddenly “lost its validity”, and the battalion commander who signed it was dismissed from his position.

Tandyr simply didn’t get lucky, because of the publicity and media attention to his case. However, NGL.media has found thousands of similar cases where those charged with criminal offenses voluntarily mobilize, and the courts suspend their cases. This applies not only to those guilty of fatal road accidents or bribery, but also to child molesters and contract killers’ accomplices.

NGL.media’s analysis of the court registry for 2022-2024 shows that the consideration of about 11,000 cases was suspended indefinitely due to the defender’s mobilization The State Judicial Administration of Ukraine does not collect any official statistics on such cases.

HOW WE DISCOVERED IT Згорнути

Since the State Judicial Administration does not summarize data on suspended court cases, we had to create such a database ourselves. The only thing common to such cases is the grounds for suspension of proceedings – Art. 335 of the CPC, which must be mentioned by the judge when delivering the judgment. We used various search terms related to the words “military” and “mobilization” in combination with the mention of Art. 335 of the CPC, for the period between January 1, 2022, and April 15, 2024. As a result, we received more than 20,000 documents in the court register that generally met our criteria.

After repeated computer-aided analysis, 11,513 decisions remained. 10,775 of those concerned the suspension of the case due to the mobilization of the defendant, and the courts denied the motion or resumed the proceedings only in 738 cases. Separately, we analyzed 400 randomly selected decisions from this list to identify interesting cases and possible changes in decisions.

The possibility of suspending court proceedings due to mobilization is provided for in Art. 335 of the CPC, which states that if the defendant “was called up for military service during mobilization, for a special period, the court suspends the court proceedings against such defendant […] until his dismissal from military service”.

Analysis of the suspended cases shows that they mostly concern theft, drugs, and serious road accidents. Many of the suspended cases relate to corruption crimes – misappropriation or embezzlement of property, bribery, abuse of office, etc.

Of the total number of cases stopped due to defendant’s mobilization і 10,775 cases in total , NGL.media analyzed 400 randomly selected cases in detail and found that about one hundred defendants (25%) in these cases committed the crimes they were charged with when they already in the military. Of the remaining cases, 95% of the proceedings were terminated by the courts after the accused were mobilized. Only in 5% of cases the court refused to do so. It’s important to emphasize that court decisions in such cases are not subject to appeal.

Of course, it cannot be stated unequivocally that all the defendants who mobilized are trying to delay the trial. For some of them, this could be a completely natural desire. However, studying some of the cases, we have substantiated suspicions that it’s the way for newly recruited soldiers to evade punishment.

“I am 100% sure that there are cases of abuse. And not only in the monitored court proceedings – specifically with judges… There were cases when judges mobilized to avoid other processes, such as the consideration of a disciplinary case by the HCJ і the High Council of Justice . НA recent example is Judge Kolegayeva, who mobilized, to suspend hearing of a complaint against her for drunken driving. Such a complaint may result in dismissal, but while the case is being suspended, the judge will remain in her status and receive her judicial remuneration. So, this is a problem not only in court proceedings, and there are many cases where this is abused,” says Marta Bereza, lawyer at DEJURE Foundation.

Kateryna Butko, the head of the all-Ukrainian association Automaidan, previously analyzed the places of service of the accused judges: units guarding state facilities, training platoons and military recruitment centers.

NGL.media also found similar cases.

Serving the military recruitment guard

For example, the case of Mykola Harkavyi, a former deputy of the Khmelnytskyi Regional Council, who in 2017 convinced the director of the Kamianets-Podilskyi boarding school Slavutynka to pay a $50,000 bribe, was stopped because he served as a commander of the military recruitment office’s security. According to him, the money was supposed to go not to him personally, but to the head and two deputies of the regional council.

The prosecutor’s office classified Kharkavyi’s actions as fraud and incitement to bribery. At the end of January 2022, the High Anti-Corruption Court sentenced him to 7 years in prison with confiscation of property. But he did not have to go to prison – in February, his lawyers filed an appeal, and a few days later, a full-scale war broke out.

In May 2022, Mykola Kharkavyi mobilized to the Armed Forces of Ukraine, and soon a panel of judges suspended the proceedings until his discharge from the service. However, one judge disagreed with the decision of his colleagues and filed a dissenting opinion. In his opinion, the case should not have been suspended, as the defendant serves as a commander of the military recruitment office security and this did not prevent him from remote participation in the hearings of Kirovskyi District Court of Dnipro three times.

Moreover, this judge even emphasized that such a literal interpretation of Art. 335 of the CPC could set a dangerous precedent when defendants will specifically mobilize to initiate the suspension of criminal proceedings and to allow the statute of limitations for prosecution to expire.

NGL.media managed to contact Mykola Kharkavy via messenger. He assured us that he was “defending and protecting the country in various combat areas,” but did not specify which areas exactly. He also avoided answering direct questions about what prevented him from participating in meetings remotely at least in 2022 and whether he had consciously mobilized to avoid prison.

Blind marriageFake marriages with women with disabilities are booming in Ukraine. NGL.media found out how it worksHOW THEY DODGE DRAFTING Not only men mobilize in such cases. For example, Liudmyla Yatsenko, 48, who used to work in a court and was accused of soliciting bribes, initially avoided court hearings, arguing that in March 2022 she had joined the territorial defense of Kozynska ATC in Kyiv region. After NABU detectives found out that the checkpoints which Yatsenko was allegedly manning had long since been deactivated, her lawyer filed a motion in March 2023 to suspend the case due to her mobilization.

According to the published information, Liudmyla Yatsenko was mobilized somewhere in Zakarpattia and then became a soldier in a grenade launcher unit. The prosecutor objected to the suspension of the case because he believed that she was simply evading the court, but the case was suspended a year ago and has not been resumed since. NGL.media was unable to get a comment from Yatsenko.

Sometimes courts resume consideration of such cases. For example, one of the courts in Poltava suspended the case of a certain Dmytro Dukhnovsky, who committed hit and run under the influence, after his mobilization. However, the case was resumed after his AWOL. He was put on the wanted list, found and is now being tried again.

Could or should

The few cases (less than 5%) when judges still refuse to suspend the case due to the mobilization of the defendant is due to the fact that most judges do not investigate where the defendant serves and whether they can participate in hearings remotely.
In some of the cases analyzed by NGL.media, the dates of mobilization weren’t even indicated.

Judges interpret Art. 335 of the Criminal Procedure Code as binding, without finding out whether the mobilized defendant is in the rear or in the combat zone. That is, the mere fact of service is enough.

“Most judges perceive this provision as mandatory. It does not say “the court may suspend”, it says “the court suspends”. However, some judges explain that there are deadlines and other principles of criminal procedure that must be observed in order not to create additional conditions allowing the person to avoid responsibility. Such judges take everything into account. If there is no sufficient evidence that the defendant cannot attend court hearings, including via video conference, then [the case] is not suspended,” explains Marta Bereza from DEJURE.

Decisions to refuse to suspend the trial aren’t numerous, but they do exist. Moreover, not only the High Anti-Corruption Court makes such decisions, but local courts too. For example, a judge of a Kyiv court ruled that there was no need to suspend the proceedings on fraud charges against a now junior sergeant of the National Guard, as he remained in Kyiv.

Still, the case of Ruslana Kurliatovych, a former prosecutor from Drohobych who regularly (more than twenty times) missed hearings, is a very striking example. She failed to appear in court once again in January 2023 because she was allegedly ill, and her lawyer said that she was to undergo surgery on January 16. Before her surgery, while still on the “sick leave”, Kurliatovych registered for military service at a different place of registration, and on January 12, she was drafted into the Armed Forces.

She joined the army as a “rifle of the security unit”. However, the court refused to suspend the case because it believes that she is using “an honorable duty – service in the Armed Forces of Ukraine – to evade criminal liability”.

Already in March last year, the court found Ruslana Kurliatovych guilty of fraud, but the appeal overturned the verdict and the case is being reviewed anew. Meanwhile, Kurliatovych recently filed a declaration, in which she listed Stryi district RSS as her place of work і the Territorial Center for Recruitment and Social Support .

A rapist of a minor became a deputy commander for moral and psychological support

Almost half of the 400 cases analyzed in detail by NGL.media relate to criminal proceedings initiated in 2010-2020. The statute of limitations continues to run while the defendants are serving, and therefore, it is likely that they may be released from criminal liability altogether because the statute of limitations has expired.

WHAT IS A STATUTE OF LIMITATIONS AND HOW LONG DOES IT LAST? Згорнути

The statute of limitations is a period of time established by law during which legal (judicial) proceedings, including criminal prosecution of a person, may be initiated and carried out. According to Art. 49 of the Criminal Code, depending on the severity of the crime, this period might vary between two and fifteen years. More details about the statute of limitation can be found, here, for instance

“The expiration of the statute of limitations is not an automatic ground for closing the proceedings. The court is obliged to find out and take into account the opinion of the defendant. For example, the defendant may refuse to close the case if he or she anticipates an acquittal,” says Marta Bereza.

Most of the cases analyzed by NGL.media are minor crimes, in particular, the majority are theft accusations with the short statute of limitations. However, there are also cases where the court suspends proceedings on charges of serious crimes.

For example, the Zhovtnevyi District Court of Mykolaiv Region is considering Vladyslav Rakovchen’s case. He is accused of inflicting grievous bodily harm that led to the victim’s death; this happened more than four years ago. In June 2022, Rakovchen became a “rifleman-sergeant of the military cargo escort unit of the security platoon” and the court suspended the consideration of his case.

In the same region, the court suspended the case against Tymofii Velykyi accused of aiding and abetting a contract killing that took place almost 10 years ago. He had previously been hiding from the investigation and was on the wanted list for more than a year. In July 2022, he first joined the Voznesensk City Territorial Community Volunteer Force, but the court refused to suspend the case because the territorial community volunteer force is not part of the Ukrainian Armed Forces. However, the following year, the court suspended the case because Velykyi mobilized to the Ukrainian Armed Forces.

Grand escapeNGL.media identified 2,248 men who fled the country using the Shliakh information system and those who were helping themBack in early 2019, the Brovary City District Court of Kyiv Oblast heard a case of rape of a minor. The names of both the defendant and the victim were withheld, probably due to the high sensitivity of this information. According to the investigation, the defendant, together with a group of accomplices, physically abused the minor girl and raped her, also committing unnatural sexual offense. However, in May 2022, the court suspended the proceedings due to the defendant’s mobilization. The fact that he serves not as an ordinary soldier, but as a deputy commander of a military unit for moral and psychological support is especially shameful.

Non-definitive decisions

Even if judges refuse to suspend the case, such decisions are not always final. Usually, the reasons that force the court to change its decision are a transfer to a combat zone or a certificate from the command that the accused cannot participate in court hearings, even via video.

For example, the High Anti-Corruption Court initially dismissed but then suspended the case against Ruslan Zhurylo, former director of the “United Mining and Chemical Company JSC”. The case is about infliction of damage to the company in the amount of almost UAH 300 million back in 2015-2016. Initially, Ruslan Zhurylo served in the territorial community volunteer force “For Petrivshchyna” in which he was on the position of deputy commander and participated in court hearings online.

However, in March 2023, Zhurylo was enlisted as a “logistics sergeant” in the Ivan Bohun Special Forces Brigade.

His lawyer petitioned the court to suspend the case and provided a certificate from the unit commander stating that the accused could not come to Kyiv and could not participate in online hearings. However, the court refused to suspend the case. They said that if he could participate online before, why can’t he now, since many courts in the eastern regions are equipped with video conferencing.

Later, the court changed its decision and suspended the proceedings against Zhurylo, as the unit’s personnel (including the accused) were actively involved in hostilities, and it was impossible to predict the unit’s movement.

NGL.media was unable to contact Ruslan Zhurylo, but was able to speak with his lawyer, who stated that her client’s motives for service were in no way related to his criminal case.

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Among the cases studied by NGL.media, there are also very suspicious cases when there were no special changes in the place of service, but the court changed its decision for some reason. For example, such a story happened in the Drohobych City District Court in Lviv region.

One of the accused of intentional light bodily harm to his wife, Ihor K., was mobilized. He served in a security company and returned home every day in the evening. Therefore, the judge refused to suspend the case, but later she changed her mind, disregarding the fact that the place of service didn’t change. In April this year, the case was resumed, because the defendant was dismissed from the service. Prosecutor Oksana Dubil explained that the defendant does not admit his guilt and will seek an acquittal. He wanted to stop the case to better prepare for his defense. The court told NGL.media that judges can’t talk on the phone and can only respond to a written request.

“It weakens us more than it adds resources”

According to Kateryna Butko, head of the all-Ukrainian association Automaidan, in most cases mobilization of those charged with corruption is nothing but a way to buy time and avoid responsibility:

“Of course, it is not quite right to prohibit people to defend their country with arms if they want to do so. However, as we see, those charged with corruption crimes mostly use this right as a way to avoid responsibility, nothing more,” Butko says.
“In fact, I am convinced that the number of those accused of corruption crimes who want to mobilize would decrease dramatically if they lose the opportunity to mobilize to the positions on the rear lines. However, it is worth considering the possibility of banning mobilization for those charged with serious corruption crimes.”

“This kills the public faith in justice and demoralizes the whole society. That is, it weakens us more than it gives us resources. There is nothing worse than demoralizing a society already shaken by war,” says Yurii Vovkohon, a Lviv volunteer who was discharged from the army after being seriously wounded.

According to Vovkohon, there is no particular prejudice among the military against people convicted or accused of crimes. In 2014-2015, he had to fight side by side with previously convicted people, as well as with investigators and prosecutors. At the frontline, everything depends on a particular person and how they show themselves. But, in his opinion, the mobilization of those accused of crimes should be approached wisely and divided into different categories.

“For example, those accused of rape or particularly brutal murders should not be recruited into the Armed Forces, because there is a high probability that they will repeat their crimes, which would be a disaster. This will have a very negative impact on the reputation of the Armed Forces and the psychological state of the unit itself,” Vovkohon believes. – “And, of course, it is necessary to imprison people suspected of particularly serious corruption crimes, because it is a sign for the society.
It is a marker of what is happening in the country.”

Releasing corrupt officials

In April, the Verkhovna Rada passed the first reading of the draft law No.11079-1 on the mobilization of convicts, which stipulates that only five categories of convicts wouldn’t be able to be mobilized, such as those who committed crimes against national security, intentional murder of two or more people, rape, etc. Anyone else can be mobilized.

According to Olena Shcherban, deputy executive director of the Anti-Corruption Action Center, this draft law will allow for the release of convicted corrupt officials. “Under the guise of ‘strengthening mobilization’, the draft law will actually legalize evasion of a court-ordered sentence of imprisonment, and later – through corruption schemes – dodging the military service altogether,” emphasizes the military recruitment center.

Authors Oleksandra Gubytska, Maksym Pikho and Anton Stoliarov, editor Oleh Onysko, infographics by Nazar Tuziak, cover by Rostyslav Abramets