A lawyer in cases of unauthorised abandonment of a unit: legal assistance and peculiarities of defence

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Lawyer

Ukraine / Kyiv

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Publication date: 25.07.2024

A lawyer in cases of unauthorised abandonment of a unit: legal assistance and peculiarities of defence

AWOL from a military unit or place of service is a serious violation of military discipline, which can have significant legal consequences for a serviceman. This offence entails administrative or criminal liability, depending on the circumstances of the case. A defence lawyer in cases of unauthorised desertion plays a key role in protecting the rights of the accused by providing legal support and proper representation in court. In this article, we will consider the main aspects of the work of a lawyer in such cases, including the legal framework, the rights and obligations of a lawyer, the specifics of defence, as well as ethical issues arising in this area.

Legal framework

The main legal acts regulating the issue of liability for unauthorised leaving of a military unit in Ukraine are:

• The Criminal Code of Ukraine: Article 407 of the Criminal Code of Ukraine provides for criminal liability for unauthorised absence from a military unit or place of service for more than three days, as well as for leaving a military unit with the intention of avoiding military service.
• Disciplinary Statute of the Armed Forces of Ukraine: Defines disciplinary measures against servicemen who violate military discipline, including unauthorised abandonment of a unit.
• Code of Ukraine on Administrative Offences: Provides for administrative liability for less serious offences related to military service.
• Law of Ukraine "On the Bar and Practice of Law": Defines the rights and obligations of lawyers who defend the rights and interests of defendants in criminal cases.

Rights and obligations of the advocate

A defence counsel in cases of AWOL performs an important function of defending the rights of the accused. 

The main rights and obligations of a defence counsel include:

1. The right to participate in all stages of criminal proceedings: A lawyer has the right to participate in interrogations, investigative actions, court hearings, as well as to file motions, applications and complaints on behalf of the client.
2. Ensuring the protection of the rights of the accused: The advocate is obliged to ensure the protection of the rights and legitimate interests of his or her client, including the right to defence against unfounded accusations, the right to a fair trial and the right to the presumption of innocence.
3. Confidentiality: The advocate is obliged to keep the information received from the client confidential and not to disclose it without the client's permission, except in cases provided for by law.
4. Preparation and submission of evidence: The advocate shall have the right to collect, submit and examine evidence that may prove the client's innocence or mitigate his or her liability.
5. Advising the client: The advocate shall advise the client on the legal consequences of his or her actions, possible defence options, as well as on the client's rights and obligations in the course of criminal proceedings.

Peculiarities of defence in cases of unauthorised abandonment

Defence in cases of unauthorised abandonment of a unit has its own peculiarities related to the specifics of military service and criminal proceedings. 

A lawyer should take into account the following aspects:

1. Investigation of the circumstances of the case: It is important to investigate in detail all the circumstances of the case, including the reasons and motives for the unauthorised abandonment of the unit. This may include the personal circumstances of the soldier, health problems, family circumstances or other factors.
2. Search for mitigating circumstances: The defence counsel should look for mitigating circumstances that may reduce the client's liability. These may be circumstances that indicate the absence of intent to violate discipline or the need to take action to protect life and health.
3. Challenging the evidence of the prosecution: The advocate has the right to challenge the evidence of the prosecution if it was obtained in violation of the law or is not true. This may include questioning witnesses, experts, analysing documents and other actions.
4. Preparation for the trial: The lawyer should prepare the client for participation in court proceedings, explain the procedure, rights and obligations, as well as the possible consequences of the court decision.
5. Defence in court: During the trial, the lawyer represents the client's interests, participates in court debates, asks questions of witnesses, experts and the accused, and files motions and applications on behalf of the client.

Ethical issues

Lawyers working in cases of unauthorised abandonment must adhere to the ethical standards set for the practice of law. 

The main ethical issues include:

1. Maintaining confidentiality: The lawyer is obliged to keep information received from the client confidential, even after the case is over.
2. Good faith and professional ethics: The advocate must act in the interests of the client, fulfil his or her duties in good faith, and not use his or her position for personal gain.
3. Ensuring a fair trial: The advocate is obliged to ensure that his or her client has a fair trial, including the right to defence, the right to participate in the proceedings and the right to appeal against the decision.