Material by the Agency for Legislative Initiatives for Ukrainska Pravda
‘The stick and carrot’ have long been known, since school days, as methods of influence. The state also uses them to govern society. The ‘stick’ — that is, sanctions and punishments — is applied when the state wants to discourage society from certain behaviour. When it seeks to encourage more people to behave in a particular way, it applies the ‘carrot’ — motivation and reward. Both tools must be applied to achieve results, as the proverb teaches us. The Ukrainian Parliament, in striking a balance between the ‘stick’ and the ‘carrot’, is severe — it gives preference to punishment over reward.
Parliament’s standard reaction to any social problem is the ‘stick’: to increase liability for citizens, to add new articles to the codes, and to introduce harsher sanctions.
Let us take, for example, Draft Law No. 13452 — yet another ‘stick’. It proposes to strengthen punishment for military personnel for disobeying an order with imprisonment for a term of 5 to 10 years. Moreover, the court would have no right to take circumstances into account or impose a lighter sentence. MPs may vote on this draft law as early as today, 3 September.
The declared aim is to increase discipline in the army, allegedly in response to a demand from the military itself. Yet as soon as information about the draft law appeared, the most critical voices came precisely from the soldiers. Lawyers also question the effectiveness of this approach. For example, Judge of the Grand Chamber of the Supreme Court, Doctor of Laws Oleh Tkachuk, emphasises: ‘Increasing punishment in itself will not ensure law and order in the Armed Forces’. And not only in the Armed Forces, in fact; this example is by no means an isolated one.
The Law on Looting: When Punishment Replaces Understanding
Let us move to 3 March 2022. Exactly one week had passed since the start of russia’s full-scale invasion, and Parliament convened for a session at which it would for the first time adopt laws under martial law. One of the first problems it sought to address was ‘looting’, or what MPs understood by this term. And what they understood by it were theft, robbery, brigandage and extortion committed under martial law or a state of emergency. At that time, the imagination could draw a picture of gangs of criminals carrying away property from houses whose owners were fleeing the fighting. What had to be done to prevent such a situation? MPs used their time-tested trump card — in their imagination — to increase liability. Thus, on 3 March, they registered, reviewed and adopted Law No. 2117-IX, equating any theft ‘under martial law’ to a serious crime.
Did such a decision stop thefts under martial law? No. But it created an exceptional legal problem that even the Grand Chamber of the Supreme Court could not resolve, and complicated the interpretation of the new provisions in courts. The very fact that many cases of theft under martial law were heard shows that such offences were nevertheless committed, even though Parliament had increased liability for them.
Moreover, the very definition of ‘looting’ was incorrect. In international law, it means theft of property on the battlefield, in particular from the wounded or the dead. In fact, it has the same meaning in the Criminal Code of Ukraine. Nevertheless, this did not prevent lawmakers from calling ordinary offences committed anywhere in Ukraine looting.
Why Does the ‘Always the Stick’ Formula Not Work?
‘More punishments — fewer offences’ sounds simple and appealing, but it does not work in practice. Of course, the state cannot hand out only ‘carrots’; there must be punishment for undesirable behaviour. But problems cannot be solved in this way alone. On the contrary, the opposite effect may be achieved — worsening the situation or increasing the burden on law enforcement and the courts. Yet this does not seem to trouble lawmakers. The Committee on Law Enforcement regularly ranks among the top three busiest committees of the Verkhovna Rada of Ukraine. From session to session, MPs methodically and relentlessly compete over who can devise new punishments. Do these punishments solve social problems? The question is rhetorical.
Will Draft Law No. 13452 Solve the Problems It Is Supposed to Address?
The military doubts this — instead of solving the problem, soldiers are likely ‘simply to leave their units (AWOL) more often’. Liability is provided for absence without leave (AWOL), yet more than 200,000 cases show that punishment alone cannot effectively prevent it.
The proverb about the ‘stick and carrot’ is not unique. For example, in the United Kingdom, the more common idiom is about the ‘stick and carrot’. Likewise, Ukraine is not unique in its attempts to influence society. Other states also seek to influence society by different methods. In doing so, they have left the ‘always the stick’ formula far behind. Where Ukraine seizes every opportunity to amend laws, the European Commission proposes a broad set of tools to influence social behaviour, grouped into four categories (each of which includes a list of specific instruments):
- ‘hard’ binding rules;
- ‘soft’ regulation;
- education and information;
- economic instruments.
Where Ukraine conducts a super-quick analysis in a single day, the European Commission may spend several months studying a problem, choosing the most balanced, rational and effective option for resolving it.
Where Ukraine uses ‘always the stick’, the European Commission may think about changing the environment, the organisational model, the management structure and culture, combining sanctions with incentives, and so on.
This does not mean that the EU never applies ‘sticks’, sanctions and punishments. It does. But only after determining (as a result of thorough analysis and broad consultations) that all other ways of solving the problem will not work, and only legislative changes establishing sanctions for undesirable behaviour can correct the situation.
Will There Be a ‘Carrot’ in Parliament?
Ukraine is moving towards the EU. The Verkhovna Rada of Ukraine plays one of the key roles on this path. And the new, fourteenth session of the Ukrainian Parliament’s work can bring us even closer to the European Union. However, the ratification of a few more technical regulations or uniform product labelling will not make Ukraine a full member of the EU. An important aspect of our development must be a change in the logic of addressing social problems. The European Union was not built with ‘sticks’ alone.
Perhaps Ukrainian lawmakers want to create the impression of a ‘strong hand’ which, holding the ‘stick’, keeps everything under control. Or perhaps MPs continue to do this unconsciously and by inertia, applying only sanctions and punishments, since it is difficult for them to imagine other ways of solving problems. However, the new session of the Verkhovna Rada offers a new chance to change the ways in which society is influenced. Or else — remain hostage to their own ‘stick’.
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