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To avoid conscription/mobilization, pay here – Odessa

June 8, 2015

That the Ukrainian military has been historically corrupt is an understatement.

That it remains so in a time of war, is perhaps not surprising.  War has a habit of producing “external entrepreneurs” and “internal fixers”.

However, that known, previously caught corrupt military personnel remain corrupt military personnel takes some explaining.

In Odessa, in 2011, the Colonel Yuri Pishkun was arrested taking a $300 bribe from a young man to escape the conscription draft.  Colonel Pishkin remain, however, in the Ukrainian military.  Not only did he remain in the Ukrainian military, he is now the Odessa Oblast Military Commissar.

Now $300 is not a lot of money to escape conscription for many who live in the city of Odessa.  It is an affluent city.  For those in the far flung corners of Odessa Oblast, in 2011, just as today, $300 is no small sum.

However today there is a war happening in eastern Ukraine.  $300 is not going to be enough to avoid conscription.  Indeed just a Euromaidan was in its infancy, a family member of your author was due for conscription and thus by the end of 2013, the price to avoid compulsory service had risen to $1000 – again without a war taking place.

Few would be surprised to find that the Odessa Oblast conscription/mobilization rates are predominantly filled with young men from the corners of the Oblast, rather than their relatively richer counterparts from the city.

In short, given the large number of conscriptions, the service length of conscripts, and the ever-present number of young men coming of conscription age, there is a lot of money to be made by those who would facilitate the draft-dodge for personal gain.  Getting very rich (by Ukrainian standards) presents itself to the conscription officers over the years they hold the role.

Despite Odessa Oblast’s brush with the law in 2011, his get rich scheme continued by facilitating the draft-dodge for cash.

He has now been arrested again for doing just that, taking possession of a second “tranche” from those wishing to avoid conscription.  He has been charged under Article 368 of The Criminal Code and bail set at UAH 10,000,000 – approximately $475,000.

Article 368. Acceptance of a Bribe

1. Acceptance by an officer, in any form, of a bribe for the performance or non-performance in the interests of the bribe-giver, or in the interests of a third party, of any action with the use of authority or official position entrusted to him/her, –

shall be punishable by fine in the amount five hundred to seven hundred and fifty tax-exempt minimum incomes of citizens, or by corrective labor for a term of up to one year, or by detention for a term of up to six months, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

2. Acceptance of a bribe in substantial amount –

Shall be punishable by fine in the amount of seven hundred and fifty to one thousand five hundred tax-exempt minimum incomes of citizens, or by imprisonment for a term of two to five years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

3. Acceptance of a bribe in large amount, or by an officer who occupies a position of responsibility, or in previous collusion of a group of persons, or repeatedly, or combined with the demanding of bribe, –

shall be punishable by imprisonment for a term of five to ten years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years and with confiscation of property.

4. Acceptance of a bribe in especially large amount, or by an officer who occupies a position of special responsibility, –

shall be punishable by imprisonment for a term of eight to twelve years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years and with confiscation of property.

Notes. 1. Deemed a ‘bribe in substantial amount” shall be such bribe that exceeds by five and more times the tax-exempt minimum income of citizens, “in large amount”, such bribe that exceeds by two hundred and more times the tax-exempt minimum income of citizens, and “in especially large amount”, such bribe that exceeds by five hundred and more times the tax-exempt minimum income of citizens.

2. Officers who hold a position of responsibility are persons stipulated by Clause 1 of the Note to Article 364, whose positions according to Article 25 of the Law of Ukraine “On Public Service” were rated among the third, fourth, fifth, and sixth categories, as well as judges, public prosecutors and investigation officers, heads and deputy heads of the bodies of state authority and management, of local government bodies, and of structural subdivisions and units thereof. Officers who hold a position of special responsibility are persons stipulated in part one of Article 9 of the Law of Ukraine “On Public Service”, and persons whose positions according to Article 25 of the Law of Ukraine “On Public Service”, were rated among the first and second categories.

3. “Repeated” in Article 368 of this Code means a crime committed by a person who already committed before any of the crimes stipulated by this Article, or crimes stipulated by Articles 3683, 3684, and 369 of this Code.

4. “Demanding bribe” means demanding on the part of an officer of a bribe accompanied by a threat to perform or not to perform, with the use of authority or official position, such actions as may inflict damage to the rights or legitimate interests of the bribe-giver, or a deliberate creation by an officer of conditions where a person is forced to give bribe in order to forestall harmful consequences in respect to his/her rights and legitimate interests”;

9) Add Articles 3682 through 3684 of the following content:

“Article 3682. Unlawful Enrichment

1. Obtainment by an officer of illegal benefit in substantial amount or transfer by the officer of such benefit to close relatives, in the absence of signs of bribery (unlawful enrichment) –

shall be punishable by fine in the amount of five hundred to one thousand tax-exempt minimum incomes of citizens, or by restriction of freedom for a term of up to two years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

2. Unlawful enrichment where the object of it was illegal benefit in large amount, –

shall be punishable by restriction of freedom for a term of two to five years, or by imprisonment for a term of three to five years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

3. Unlawful enrichment where the object of it was illegal benefit in especially large amount, –

shall be punishable by imprisonment for a term of five to ten years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years and with confiscation of property.

Note. Deemed “illegal benefit in substantial amount” shall be pecuniary funds or other assets, advantages, perks, services, and non-material assets that are without lawful grounds promised, offered, provided, or received without payment or at a price below the minimum market price, in the amount that exceeds one hundred tax-exempt minimum incomes of citizens, in large amount, in the amount that exceeds two hundred tax-exempt minimum incomes of citizens, and in especially large amount, in the amount that exceeds five hundred tax-exempt minimum incomes of citizens.

Article 3683. Commercial Subornation of an Officer of a Private Law Legal Entity Irrespective of Organizational-Legal Form

1. Offer, provision, or transfer to an officer of a private law legal entity irrespective of organizational-legal form, of illegal benefit for the performance of actions or lack of action with the use of entrusted authority in the interests of those who provides or transfers such benefit, or in the interests of third parties –

shall be punishable by fine in the amount of one hundred to two hundred and fifty tax-exempt minimum incomes of citizens, or by restriction of freedom for a term of up to two years.

2. Same actions committed repeatedly or in previous collusion by a group of persons or by an organized group, –

shall be punishable by fine in the amount of three hundred and fifty to seven hundred tax-exempt minimum incomes of citizens, or by restriction of freedom for a term of up to four years, or by imprisonment for a term of up to four years.

3. Acceptance by an officer of a private law legal entity irrespective of organizational-legal form, of illegal benefit for the performance of actions or lack of action with the use of entrusted authority in the interests of those who provides or transfers such benefit, or in the interests of third parties –

shall be punishable by fine in the amount of five hundred to one thousand tax-exempt minimum incomes of citizens, or by restriction of freedom for a term of up to five years, or by imprisonment for a term of up to three years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to two years.

4. Actions stipulated by part three of this Article, committed repeatedly or in previous collusion by a group of persons, or accompanied by demanding of illegal benefit, –

shall be punishable by imprisonment for a term of three to seven years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years and with confiscation of property.

5. A person who offered, provided, or transferred illegal benefit, shall be relieved of criminal liability if in respect to him/her the demanding of illegal benefit took place, or if after the offer, provision, or transfer of the illegal benefit, the person voluntarily reported on the occurrence, prior to the institution of criminal case against this person, to a body vested by law with the right to institute criminal case.

Notes. 1. Deemed “repeated” in Articles 3683 and 3684 shall be a crime committed by a person who previously committed any of the crimes stipulated by this Article, as well as by Articles 368 and 369 of this Code.

2. Deemed “demanding” in accordance with part four of Articles 3683 and 3684 of this Code shall be the demand to provide or transfer illegal benefit accompanied with a threat to perform or not to perform actions with the use of official authority, addressed to the person who provides or transfers illegal benefit, or the deliberate creation by the person who performs managing functions in a private law legal entity, of conditions under which a person is forced to provide or transfer illegal benefit in order to forestall harmful consequences to his/her rights and legitimate interests.

Article 3684. Subornation of Person Rendering Public Services

1. Offer, provision, or transfer to an auditor, notary, appraiser, or other person who is not a state officer or an official of local government, but performs professional activities involving the rendering of public services including services of expert, arbitration manager, independent broker, member of labor arbitration tribunal, or arbitrator (during the performance of these functions), of illegal benefit for the performance of actions or lack of action with the use of entrusted authority in the interests of the person who offers, provides, or transfers such benefit, or in the interests of third parties –

shall be punishable by fine in the amount of one hundred to two hundred and fifty tax-exempt minimum incomes of citizens, or by restriction of freedom for a term of up to two years.

2. Same actions committed repeatedly, or in previous collusion by a group of persons or by an organized group, –

shall be punishable by fine in the amount of three hundred and fifty to seven hundred tax-exempt minimum incomes of citizens, or by restriction of freedom for a term of up to five years, or by imprisonment for a term of up to three years.

3. Acceptance by an auditor, notary, expert, appraiser, arbitrator or other person who engages in professional activities involving the rendering of public services, as well as by an independent broker or arbitrator in deliberations on collective labor disputes, of illegal benefit for the performance of actions or lack of action with the use of entrusted authority in the interests of the person who provides or transfers such benefit, –

shall be punishable by fine in the amount of seven hundred and fifty to one thousand five hundred tax-exempt minimum incomes of citizens, or by imprisonment for a term of two to five years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years.

4. An action stipulated by part three of this Article, committed repeatedly or in previous collusion by a group of persons or accompanied with demanding of illegal benefit, –

shall be punishable by imprisonment for a term of four to eight years, concurrently with deprivation of the right to hold certain positions or engage in certain activities for a term of up to three years and with confiscation of property.

5. A person who offered, provided, or transferred illegal benefit, shall be relieved of criminal liability if in respect to him/her the demanding of illegal benefit took place, or if after the offer, provision, or transfer of the illegal benefit, the person voluntarily reported on the occurrence, prior to the institution of criminal case against this person, to a body vested by law with the right to institute criminal case”

With the Odessa Oblast conscription/mobilization quotas about 60% fulfilled almost 18 months into a war in the nation’s east, one wonders just how must the cost of avoiding conscription in Odessa currently is,  and the US$ value in bribes Commissar Pishkun has taken during a time that would not just implicate corruption, nor indeed a gross neglect of duty, but perhaps an act of treason in the eyes of some.

Whether a bail sum of UAH 10,000,000 is a high enough financial bar for such an individual who had such revenue streams for many years is somewhat subjective.  Is it disproportionately high?  Is it disproportionately low?

Should further charges be brought that go beyond “bribery” considering the war in the eastern regions?  Is the Odessa military prosecutor considering further charges?  If so, should the possibility of bail even be presented?

It will be interesting to watch the Odessa judicial machinery deal with this matter, as quite clearly in 2011 then Colonel Pishkun had connections within the legal system.  In 2015, Commissar Pishkun surely has.

For the well-heeled young men of the city that have thus far had no problem in buying their way out of conscription/mobilization, perhaps at their poorer country cousin’s expense, will any replacement for Commissar Pishkun mean the end of that arrangement?

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