Is "Busification" here to stay? What’s wrong with the attempts to penalize the TCK?

Lawmakers are focusing on establishing order in the mobilization process. A draft law No. 12442 has been introduced in parliament, which suggests penalties for employees of the TCC and doctors of the VVK for unlawful mobilization. "It cannot be that citizens bear responsibility for violating military registration rules, while TCC and VVK employees do not," noted one of the authors of the bill, Maxim Buzhansky.

This observation is valid, as the so-called "busification" has indeed become a negative trigger in society, which Russian propagandists skillfully exploit. But can a systemic problem be "cured" with just two new articles in the Criminal Code? This question was explored by "Telegraph".

The General Staff's Assignment

According to one of the bill's authors, MP from "Servant of the People" Georgiy Mazurashu, the initiative was lobbied in the General Staff.

— "Busification" and other abuses under the guise of mobilization work, which have a very negative impact on the situation in the country, were discussed at a joint meeting of the law enforcement and defense committees. There was a request from General Barhylevych (Anatoliy Bragilevych, Chief of the General Staff of the Armed Forces of Ukraine) with proposals to introduce criminal liability for violations of legislation committed by TCC and SP leaders, as well as chairpersons and members of the VVK, — explained Mazurashu in a comment to "Telegraph".

The General Staff's concerns are understandable, as the formal implementation of the mobilization plan by TCC employees without a quality component of the call does not benefit the front. Moreover, as practice shows, "busification" is not exactly a panacea for fulfilling the plan. For example, according to "Telegraph," the Odesa and Zakarpattia regions had some of the lowest indicators for fulfilling the plan prior to last year's May upgrade of mobilization legislation. However, these regions exceeded their plans regarding sensational videos on TikTok.

As noted in the explanatory note to the draft law, it is "designed to ensure proper compliance by authorized persons with the requirements of mobilization legislation, as well as to uphold the rights and freedoms of citizens during mobilization activities." Wonderful! This is exactly what is needed to put an end to "busification." Or is it? Let's take a closer look.

The Essence of Changes

Parliamentarians propose to supplement the Criminal Code of Ukraine with two articles that were not previously present.

Penalties for TCC. This will be outlined in the proposed new article 426-2 of the Criminal Code. According to the lawmakers' design, during the martial law period, military officials could face three to eight years in prison if they mobilize a citizen who, by law, cannot be mobilized. Conversely, they could be penalized for exempting someone who should be called up.

However, two fundamental questions immediately arise regarding the wording of such a strict article.

First, TCC's liability arises in cases of violation of the call order concerning those who cannot be called up by law. As lawyers point out, this is indeed a problem.

— For example, a father of many children. He submitted all the documents, a deferment request, and was told that his request meant nothing, and he would be mobilized. He arrives at the unit, submits his request, and after three to four months, he leaves the military unit with the same documents. During these months, the person received a salary, an additional award, training, and was fed three times a day. Who will be held accountable for this? The amounts are very significant: half a million hryvnias or even a million hryvnias have been spent on each of these individuals. Wait a minute. Just for the TCC head to check a box indicating that someone was mobilized, the state has lost a million hryvnias? — said in an interview with "Telegraph" lawyer Rostyslav Kravets.

And what about those who can be mobilized? Are they allowed to be called up with violations? At least, for their "busification," the "anti-busification" bill does not establish any responsibility for the TCC.

— Here we are talking about the degree of public danger: a person is not subject to mobilization, yet they are called up. This poses a threat. In another case, a person seems to fall under the call, but there were some formal violations that are not criminally punishable, — comments capital lawyer Dmytro Buzanov to "Telegraph."

— As for "forceful" mobilization — in my opinion, this violates not only the norms of existing legislation but also common sense. Unfortunately, this is ignored by law enforcement, probably with the expectation that "war absolves everything." I will propose to expand the scope of this bill to combat such disgraceful and complexly harmful actions by individuals in uniform, which are referred to as "busification," — clarified Mazurashu's idea.

Secondly, the norm regarding the responsibility of only military officials for unlawful mobilization is ambiguous. As noted by the Defense Ministry spokesman Dmytro Lazutkin, there are 36,000 people working in TCC across Ukraine, and among them, 7,000 are civilians. Thus, 29,000 military personnel in TCC will bear responsibility for violations of mobilization, while 7,000 civilians will not?

— It is evident that civilians apparently do not make decisions that violate mobilization legislation. But again, these are the aspects that can be refined and improved if adopted as a basis, — added Mazurashu.

— The order for referral, acceptance, or call-up for military service is issued precisely by the head of the TCC, who is a military official, — explains Buzanov.

Penalties for VVK. The new article 337-1 of the Criminal Code proposes to punish doctors who perform "miracles" by declaring sick individuals as "healthy" to send them for service. Conversely, they may invent non-existent illnesses for the healthy to exempt them from the call-up. A vivid example is the story of former head of KP "Kyiv Metro" Viktor Braginsky, who left the country based on a falsified VVK decision.

For such actions, doctors could face imprisonment for a term of three to eight years.

In the end, the draft law does address several important issues for the military related to the quality of conscripts.

— It is aimed more at preventing the call-up of those who are reserved, have medical indications, the right to deferment, and so on. But it does not aim to end "busification," — notes Buzanov.

Yet, it is precisely as a "remedy" for "busification" that lawmakers "sell" this draft law to the public.

So What Will Not Work?

According to lawyers, existing legislative norms are quite sufficient to hold TCC employees and VVK doctors accountable.

For instance, article 426-1 of the Criminal Code "Abuse of military authority or official powers" already prescribes penalties of up to 12 years of imprisonment.

Or article 366 "Official forgery," which can be applied to VVK doctors for "providing knowingly false information in official documents."

— Although it is fair to note that existing articles require the presence of harm. No harm means no qualification. In the new draft law, the fact of violation of the procedure for conducting a medical examination leading to illegal call-up or non-call-up does not imply any harm, making it not quite the same. However, if this draft law is adopted, the defense side will "stretch" the existing qualification, as the penalties are less severe, — emphasizes Buzanov.

Finally, there is article 146 "Illegal deprivation of liberty or kidnapping of a person."

Therefore, the main question is not about the quality of the legislation but its enforcement.

— The issue is not about regulation at the legislative level. The main problem is that the territory of TCC functions as a "sacred cow," which is untouched and where general rules do not apply. Existing criminal legislation is practically not enforced there, — explains "Telegraph" the executive director of the Ukrainian Helsinki Human Rights Union Oleksandr Pavlichenko. — Accordingly, it is possible to adopt separate laws, such as allowing TCC gates to be open or permitting video recording in TCC, but all this would be nonsense. What is the point of reiterating in laws that arbitrary deprivation of liberty or