Stealing coffee, losing years: When harsh sentencing overshadows justice

Why did Vitaliy receive such a harsh sentence? In March 2022, Ukraine passed a law to increase liability for major property crimes, which are traditionally committed more often than others. These include theft and robbery.

hromadske analyzed whether these penalties are proportional to the actual damage and whether it is reasonable from the point of view of public spending.

"Reminiscent of the punishment for ears of grain"

The lawmakers explained that at the beginning of the full-scale war, the leniency of the law and panic led to kangaroo courts. Like when people caught a looter in Khmelnytskyi Oblast in March 2022, pulled down his pants and tied him to a pole with duct tape. That's when the law was amended: property crimes were classified as "committed under martial law" (part 4 of the relevant articles).

Before the law was amended, ordinary theft (called secret theft in the law) could be punishable by a fine or imprisonment. Robbery (open theft of property) was punishable by a fine, community service or correctional labor, probationary supervision, or imprisonment.

The lawmakers wanted to fight looting, but law enforcement officers misinterpreted the law, says lawyer Yulia Kolomiyets. All property crimes have been labeled as those committed under martial law, regardless of the place and method of the crime.

That is, theft of goods in a supermarket in western Ukraine and theft from a house in a war zone were equated. And even if the stolen goods only exceeded the amount of 300 hryvnias ($7), the penalty was 5 to 8 years in prison.

This resulted in punishments that, according to some lawyers and judges, were disproportionate to the damage caused. For example, a previously unconvicted resident of Ivano-Frankivsk was caught several times in 2021-2022 stealing goods from stores. He stole food, coffee, and alcohol. The amount of damage was over 12,000 hryvnias ($290).

He could have had a shorter sentence, but because he stole a bottle of liquor for 470 hryvnias ($11) during martial law, he was sentenced to 5 years in prison. In the Ivano-Frankivsk City Court, the defendant pleaded guilty and explained that he had no money, so he stole to feed himself.

On appeal, the sentence was upheld, but one of the judges disagreed with the panel. He even published his own dissenting opinion that the 5-year prison sentence, although legal under martial law, was unfair and did not correspond to the damage caused.

"The severity of this punishment is reminiscent of the long-standing practice of excessive punishment for a few ears of grain," the judge said.

Judges typically exempted first-time offenders from imprisonment, as not everyone considered such punishment proportionate. However, if the defendant had a prior theft conviction, judges were compelled to impose the minimum possible sentence—5 years.

"If a person has not reformed without imprisonment and has committed the same crime or even a more serious one, the courts will impose punishment based on this," Denys Kovalenko, a judge and speaker of the Kolomyia City District Court, explained in a comment to hromadske.

Have the lawmakers come to their senses?

Almost 2.5 years after the increase in liability, MPs also recognized the disproportionality of punishments. In August 2024, they passed a new law. It raised the threshold for criminal liability for theft to 3,028 hryvnias ($73).

But it is unclear whether this law will help the man from Rivne, who was imprisoned for 3 years and 7 months by the Rivne City Court a year ago for trying to steal diapers worth 356 hryvnias ($9) from a store. The court sent him to prison, taking into account that the man had a previous conviction for fraud. However, if he had stolen the diapers after August 2024, he might not have been sent to prison.

Still, this man has a chance for exemption. This applies to those convicted of stealing up to 3,000 hryvnias.

"If a person is found guilty under Part 4 of Article 185 of the Criminal Code and imprisoned, the convicted person, their defense lawyer, the penitentiary institution, or the prosecutor can go to court to have the sentence reviewed in accordance with the new law," explains speaker judge Denys Kovalenko.

At the same time, Vitaliy from Lviv, who stole coffee, was charged with robbery committed under martial law, not theft, because he was noticed by a guard, which is classified as open theft. The disproportionate punishment for such crimes remains, notes Ivan Shmatko, a researcher at the Center for Sociology of Law and Criminology.

Why are changes needed?

"The proportionality of punishment is spelled out in black and white in the EU Charter of Fundamental Rights. If Ukraine really wants to join this association, it must start not only demanding compassion and help from others, but also adhere to basic human rights principles," Shmatko says.

He adds that it is very expensive to keep criminals in prison. A month of detention in a pre-trial detention center costs the state about 11,000 hryvnias ($265). Vitaliy from Lviv was detained for over three months for stealing coffee worth 300 hryvnias ($7). His pre-trial detention alone cost the state over 30,000 hryvnias ($724). Vitaliy will spend another three years in prison.

"When there is a war and a lack of funds, it seems absolutely irresponsible to throw them away to toughen the punishment for property crimes, which was adopted against the backdrop of the so-called moral panic about looting at the very beginning of the full-scale war," said Shmatko.

Possible solutions

Lawyer Yulia Kolomiyets wrote that in order to consider theft a crime "committed under martial law," law enforcement officers must prove that the offender took advantage of circumstances related to the war.

For example, this could be a theft from a store damaged by aerial attacks, where there is no security. Or breaking into someone else's home in an active war zone when the offender knows that the owners have left because of the danger.

The idea is that the crime should be directly related to situations caused by martial law. Therefore, when passing sentences, the courts must clearly find out whether the accused actually used the circumstances of martial law to commit the crime, Kolomiyets says.

Nevertheless, the Supreme Court has already expressed its position: courts must adhere to the current legal norms and not assume the role of the legislator. Moreover, the state of war is sufficient grounds to qualify property crimes under Part 4 of the Criminal Code of Ukraine.

"What kind of punishment can be imposed is a question primarily for MPs, because they are the ones who establish it. And the courts are already obliged to apply such punishment if it does not contradict Ukraine's international obligations," explains Judge-Speaker Denys Kovalenko.

Ivan Shmatko believes that changes to the law on theft should be extended to other property crimes. He notes that it is unclear why the mistake was corrected only for one type of crime, and not for the entire group, the punishment for which was increased.

The researcher emphasizes a more serious problem: the parliament lacks analysis of laws after they are adopted to understand how they work. Also, lawmakers hardly ever use sociological research to evaluate bills. This could help predict the consequences of changes before they are adopted.

"Did it work? Did it not work? Did it get worse or better? How exactly does everything work in practice now? It is not enough to pass laws and forget about them. It is necessary to monitor the practical effect and make appropriate adjustments if necessary," Shmatko explains.

He adds that if the Ukrainian parliament had considered these issues, the increase in penalties for property crimes would never have happened, nor would "many other mistakes that cost many people their lives and the state money."