A/HRC/42/40/Add.2 in July 2018. According to this new legal provision, the arrest, detention, abduction or imprisonment of a person in any other form committed by a representative of the State,5 including a foreign one, with the subsequent refusal to recognize the fact of such arrest, detention, abduction or imprisonment of a person in any other form or concealment of information on the fate or whereabouts of such person, is punishable by imprisonment for a term of three to five years. 29. The Working Group considers important the introduction of an autonomous crime of enforced disappearance in the legislation, as the lack thereof has created a situation whereby acts of enforced disappearances have been investigated by different investigative bodies under crimes such as murder, abduction and arbitrary deprivation of liberty, which is highly problematic in terms of the specific investigation required from the outset in cases of enforced disappearances. 30. While the Working Group appreciates the introduction of this specific provision, it still notes some gaps in the definition. In particular, it notes that the penalties foreseen do not seem to correspond to the severity threshold required by international law, which requires them to be commensurate to the extreme seriousness of the crime, as evidenced by the prohibition of admitting any privilege, immunity or special exemption in cases of enforced disappearances (art. 16 (3) of the Declaration) and States’ obligation to ensure that perpetrators do not benefit from amnesties or similar exempting measures (art. 18 of the Declaration). 31. The Working Group also reaffirms the view that an enforced disappearance is a prototypical continuous crime (A/HRC/16/48, para. 39), meaning, inter alia, that the crime continues for the whole period when it is committed, that is until the fate or whereabouts of the disappeared person are clearly established, irrespective of whether that person is alive or dead. Consequently, cases of enforced disappearance can and should be investigated, prosecuted and tried if they commenced before and continue after they have been criminalized in national law. Preferably, legislation should expressly mention that enforced disappearance is a continuous crime or the Supreme Court should guide Ukrainian judiciary accordingly. 32. The law criminalizing enforced disappearances covers some modes of indirect liability: “ordering the commission of actions referred to in paragraph one […] or failure for a leader who has become aware of the commission of the actions referred to in paragraph one […] to ask his subordinate measures for their termination and failure to notify the competent authorities of the crime shall be punishable by imprisonment for a term of five to seven years”. However, this provision does not meet the international standards for superior responsibility as provided for in article 6 (1)(b) of the Convention. 33. The law should in addition make no provisions for defence on the grounds of receiving an order or instruction to commit an enforced disappearance, and that anyone receiving such an order or instruction has the right and the duty not to obey. The introduction of such a legal provision should be supported by appropriate training of law enforcement, intelligence and military officers. On the other hand, the criminal law could envision mitigating circumstances for those who took part in committing enforced disappearances but who are instrumental in 5 8 There is a note to the article clarifying that “a representative of a State in this article shall mean an official, as well as a person or group of persons, acting with permission, with the support or with the consent of the state. The representatives of a foreign state for the purposes of in this article shall include persons who act as civil servants of a foreign state or who are servicemen in the armed forces, police authorities, state security agencies, intelligence agencies, or persons who are holding positions in the specified bodies or any of the other state bodies or bodies of local self-government of a foreign state formed in accordance with its legislation, or who are acting on the order of such persons, as well as representatives of irregular illegal armed groups, armed gangs and groups of mercenaries set up by, subordinated to, managed and funded by the Russian Federation, as well as representatives of the occupation administration of the Russian Federation, composed of its state bodies and structures that are functionally responsible for the management of the temporarily occupied territories of Ukraine, and representatives of the self-proclaimed bodies controlled by the Russian Federation, which usurped the exercise of power functions in the temporarily occupied territories of Ukraine.”