Lawyers Say Bill on Illegal Border Crossings Lacks Real Enforcement Mechanisms

Draft Law No. 13673: Lawyers Question the Practical Mechanisms for Criminalising Illegal Border Crossing

Draft Law No. 13673, which proposes tougher liability for illegally crossing Ukraine’s state border, currently lacks effective mechanisms for practical implementation, according to Serhii Derevianko, Attorney at Barristers Law Firm.

“The draft law remains insufficiently developed, particularly because it is unclear how it would apply, for example, to individuals who left temporarily occupied territories and travelled outside Ukraine but are unable to return for various reasons, such as serious illness or the need to care for a close relative with a disability. Under the proposed legislation, such individuals would have to return to Ukraine before the law enters into force or within three months thereafter; otherwise, they could face criminal liability. This would clearly raise concerns regarding the protection of their rights,” he told Interfax-Ukraine.

Derevianko also noted that the draft does not clearly address the situation of people who may have left Ukraine without the required documents at the beginning of the full-scale war and who, for objective reasons, remain unable to return in the near future.

This raises a number of practical questions, including how and to whom individuals staying abroad should report their circumstances. The proposed amendments to the Criminal Code provide for exemption from criminal liability only if an individual returns to Ukraine within the prescribed period and, before being formally notified of suspicion, voluntarily reports the circumstances to a law enforcement authority.

According to Derevianko, the purpose of the draft law is to prevent evasion of mobilisation through illegal departure from Ukraine while also creating a mechanism for persons liable for military service to return to the country.

If adopted, the legislation could result in criminal liability for persons subject to mobilisation who illegally crossed the state border during martial law and failed to return within the prescribed period.

As for the concept of the “period of stay abroad established by law during a state of emergency,” Derevianko noted that Ukrainian legislation does not provide a single universal definition. Different time limits for certain categories of citizens are established, in particular, by Cabinet of Ministers Resolution No. 57 of 27 January 1995.

He therefore concludes that the draft law, in its current form, lacks sufficiently clear mechanisms for implementation.

ETERNIX: The Scope of the Proposed Criminal Provision May Be Too Broad

Viktoriia Havrylkina, Attorney at ETERNIX Law Firm, also noted that the proposed legislation raises significant questions regarding the practical application of the future provisions of the Criminal Code.

According to Havrylkina, the declared purpose of the draft law is to establish liability specifically for persons seeking to evade mobilisation. In other words, the intended category of individuals appears to be relatively clearly defined.

However, the proposed wording of the Criminal Code could potentially apply much more broadly — to any person who crosses or attempts to cross the state border during martial law or a state of emergency.

This discrepancy may create problematic situations in practice.

“For example, a mother travelling with a young child may attempt to cross the Ukrainian border, but at the checkpoint it turns out that she has forgotten the child’s birth certificate. Under an excessively broad interpretation of the proposed provision, she could potentially face liability for attempting to cross the state border without the required documents,” Havrylkina explained.

In her view, it would therefore be appropriate to clarify the provision expressly by specifying that it applies to persons who cross or attempt to cross the state border with the purpose of evading conscription during mobilisation.

Havrylkina also noted that the “period of stay abroad established by law” should be understood as the period prescribed for particular categories of citizens depending on the purpose and legal grounds for their departure — including volunteers, researchers, international drivers, and other categories.

These periods are primarily regulated by Cabinet of Ministers resolutions, which are regularly amended and updated.

Enforcement and Legal Certainty

Nikita Murenko, Managing Partner at Murenko, Kuryavyi & Partners, noted that if the draft law is adopted, responsibility for detecting and documenting violations would largely fall on the State Border Guard Service of Ukraine, which already monitors border crossings through automated information systems.

At the same time, he raised concerns regarding the evidentiary standards applied to an “attempted illegal border crossing.”

According to Murenko, there have already been cases where individuals were held liable based primarily on border guards’ assessment of their “intent” or “attempt”, even where an actual border crossing had not taken place and the available evidence consisted largely of explanations or indirect circumstances.

This issue may become even more significant if conduct that currently entails administrative liability is transferred into the sphere of criminal law.

Murenko also stressed that the permitted period of stay abroad is not a single fixed period applicable to everyone. Different categories of citizens may be subject to different rules depending on the legal grounds for their departure.

Another concern is the frequent amendment of the relevant Cabinet of Ministers regulations. Since 2022, Resolution No. 57 has been amended numerous times, changing categories of persons entitled to cross the border, permitted periods of stay, and documentary requirements.

Such regulatory instability may undermine legal certainty and make it difficult for both citizens and lawyers to predict how the rules will be applied.

Potential Impact on Ukrainians Who Left Occupied Territories

Particular attention should also be paid to Ukrainians who were forced to leave temporarily occupied territories or active combat zones.

The draft law is primarily intended to address persons subject to military service who leave Ukraine under rules imposing a limited period of stay abroad. Its direct impact on refugees and other persons who left Ukraine seeking protection may therefore be more limited.

At the same time, the situation of individuals who were forced to leave occupied territories through routes that did not involve regular Ukrainian border checkpoints may require separate legal consideration.

A fundamental principle of criminal law remains applicable: no person may be held criminally liable for conduct that did not constitute a criminal offence at the time it was committed.

Accordingly, if a person crossed the border before the proposed criminal provisions entered into force, subsequent legislation introducing criminal liability should not retroactively transform that previous conduct into a criminal offence.

Nevertheless, the proposed rules may create legal uncertainty for certain categories of Ukrainians who left occupied territories under exceptional circumstances, particularly where documentation of the exact circumstances and timing of their departure is limited.

What Does Draft Law No. 13673 Propose?

Draft Law No. 13673 was submitted to the Verkhovna Rada by the Cabinet of Ministers and proposes tougher liability for illegal crossing of Ukraine’s state border.

According to the figures cited in support of the initiative, the number of recorded illegal border crossings has increased significantly since the beginning of the full-scale war.

The draft proposes, among other measures:

• a fine ranging from UAH 119,000 to UAH 170,000, or imprisonment for up to three years, for certain illegal border-crossing offences;
• for conscripts, persons liable for military service, or reservists who exceed the legally permitted period of stay abroad during martial law — a fine of UAH 34,000 to UAH 51,000, or imprisonment for a term of three to five years;
• liability for intentional damage to border infrastructure, including fines ranging from UAH 17,000 to UAH 85,000, restriction of liberty, or imprisonment for up to three years.

At the same time, the draft contains a mechanism allowing certain individuals to be exempted from criminal liability if they return to Ukraine within the prescribed period and voluntarily report the relevant offence to law enforcement authorities before being formally notified of suspicion.

The Ministry of Internal Affairs of Ukraine, which prepared the draft law, has stated that the initiative is intended to address the growing number of attempts to evade mobilisation through illegal departure from Ukraine.

However, the legal debate surrounding Draft Law No. 13673 demonstrates that its effectiveness will depend not only on the severity of sanctions, but also on clear definitions, proportionality, legal certainty, appropriate evidentiary standards, and safeguards against overly broad application of criminal law.