UKRAIŃSKI PUNKT WIDZENIA NA ASPEKTY KARNOPRAWNE MIGRACJI W CZASIE WOJNY

Анотація

The article analyses the criminal law aspects of migration in the context of the war in Ukraine, with particular emphasis on illegal border crossings and draft evasion. The author highlights that migration, especially illegal, poses a challenge both for Ukraine and Europe. It is emphasized that armed conflicts, including the war with Russia, significantly increase migration flows, necessitating international coordination. In the comparative law section, the provisions of the Polish and Ukrainian Criminal Codes are discussed. Article 264 of the Polish Criminal Code penalizes illegal border crossings, the organization of such actions, and facilitating illegal residence. Analogous provisions in the Ukrainian Criminal Code (Articles 332, 332-1, and 332-2) are, however, more detailed, taking into account the specifics of the conflict with Russia, e.g., penalizing actions of representatives of the aggressor state (Article 332-2 of the Ukrainian Criminal Code) or illegal entry into occupied territories (Article 332-1 of the Ukrainian Criminal Code). The author points to the risk of overinterpretation of Ukrainian legislation, particularly in the context of "harm to state interests," which may even include smuggling goods. A key theme of the article is the issue of Ukrainian men avoiding mobilization. According to Eurostat data, since the beginning of Russia's invasion, approximately 650,000 conscription-age men have left for the EU, often without legal grounds. In the absence of a clear prohibition on leaving the country during martial law (Article 33 of the Constitution of Ukraine allows such restrictions only by law), the Border Guard imposes limitations that are frequently challenged in courts. The author discusses Bill No. 10453, which proposes stricter penalties for illegal border crossing to evade mobilization: from 3–5 years of imprisonment for the first offense to 8–12 years if violence is used. Simultaneously, an amnesty mechanism is introduced for those returning voluntarily within six months. The article concludes with reflections on the necessity of adapting Ukrainian legislation to the realities of war, strengthening both preventive and repressive measures while ensuring proportionality of penalties and respect for citizens' rights.