DESERTATION AND VOLUNTARY LEAVING OF A UNIT: WHAT IS THE RESPONSIBILITY AND WHAT TO DO?

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Khyzhavska Olesia Yaroslavivna

Lawyer

Ukraine / Khmelnytskyi Oblast

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Publication date: 29.11.2024

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Desertion and desertion

Under martial law, Ukrainian legislation has significantly increased liability for violations of military discipline, including desertion and desertion from a unit or place of service. These crimes are considered serious offenses that undermine the state's defense capability and can result in severe punishment. At the same time, there are situations when the circumstances of the offense are not obvious, and a person needs to protect his rights or mitigate his liability. In this article, we will consider in detail the legislative aspects, the envisaged liability, as well as the possibilities of obtaining legal assistance with the support of a professional military lawyer.

Desertion and desertion are serious offenses for which the Criminal Code of Ukraine provides for severe punishment, including imprisonment. In such situations, it is important to obtain qualified legal assistance, since each case has its own unique circumstances that may affect liability.

Desertion and desertion are classified as criminal offenses punishable by significant terms of imprisonment in accordance with Articles 407 and 408 of the Criminal Code of Ukraine.

The services of a military lawyer allow you to determine the circumstances of the offense, build a defense strategy, and avoid wrongful accusation.

Legal assistance is important not only for defense in court, but also for pre-trial settlement, mitigation of punishment or replacement with a milder one.

Unauthorized abandonment of a unit or place of service is regulated by Article 407 of the Criminal Code of Ukraine and provides for punishment depending on the duration of the absence: 

• disciplinary liability for a period of up to 10 days;
• 
  imprisonment for up to three years for absence from 10 days to one month;
  up to five years of imprisonment for absence for more than a month;
• 
  from three to seven years of imprisonment for violation in the conditions of a special period (except for martial law) for more than three days;
• 
  from five to ten years of imprisonment for violation in the conditions of martial law or in a combat situation for more than three days.
   

Desertion, according to Article 408 of the Criminal Code of Ukraine, is a serious crime that involves unauthorized abandonment of a military unit or place of service for the purpose of evading military duties. The punishment for such acts depends on the circumstances of the crime, including the presence of a weapon, the conspiracy of a group of persons, as well as the conditions of a special period or martial law:

• Desertion for the purpose of evading military service. The punishment is imprisonment for a term of two to five years.
• 
  Desertion with weapons or by prior conspiracy by a group of persons. The punishment is imprisonment for a term of five to ten years.
• 
  Desertion committed under the conditions of a special period, other than martial law. The punishment 
  provides for imprisonment for a term of five to ten years.
• 
  Desertion committed under the conditions of martial law or in a combat situation.The punishment includes imprisonment for a term of five to twelve years.
   

Aggravating circumstances, in particular, the commission of a crime in conditions of hostilities or martial law, may significantly increase the punishment.
In September 2024, amendments were introduced that allow military personnel who have left their unit voluntarily or deserted for the first time to be exempted from criminal liability. To do this, it is necessary to voluntarily apply to an investigator, prosecutor or court with a request to return to service and obtain the consent of the commander of the military unit. These provisions are enshrined in paragraph 5 of Article 401 of the Criminal Code of Ukraine.
Amendments to the Law of Ukraine “On Military Duty and Military Service”, which will enter into force on November 30, 2024, simplify the procedure for returning to service for military personnel who have left their unit voluntarily or deserted, but will be valid only until January 1, 2025. Military personnel who return during this period will be reinstated in service even if there are open criminal proceedings, but without the right to monetary payments for the time of absence. In the event of return, military unit commanders have been given 72 hours to extend the contract and notify the relevant authorities.

Services of lawyers of the "Consultant" service

The "Consultant" legal service offers a wide range of services for servicemen who have been accused of desertion or desertion. The main services include:

1. Consultation. Legal consultations allow the client to receive complete information about his rights, obligations and possible risks associated with the accusation of desertion or desertion. Lawyers will help determine the optimal strategy of action for effective defense and minimizing the consequences.
2. 
   Analysis of case materials. 
   Detailed legal analysis of documents related to the accusation in order to assess the prospects of the case and form a legal position.
3. 
   Collection of evidence. 
   Collection of evidence includes assistance from a lawyer in preparing documents confirming valid reasons for absence, such as medical certificates or certificates of family circumstances. Legal support guarantees the correctness of the registration of evidence that can significantly affect the outcome of the case.
4. 
   Representation at the pre-trial stage. 
   Negotiations with investigative authorities, protection of the client's interests during investigative actions, minimizing the risks of unfounded accusations.
5. 
   Defense in court. 
   Full support of the client during the trial, including preparation of evidence, procedural documents and representation of interests in court.
6. 
   Appealing the verdict. 
   Preparation of appeals or cassation appeals in the event of an unfavorable court decision, in order to review the case or mitigate the punishment. 
7. 
   Conclusion of an agreement with the investigation. Legal assistance in negotiations with investigative bodies to conclude an agreement that may provide for a reduction in punishment.
8. 
   Legal support in complex cases. 
   Assistance in resolving non-standard or complex situations related to war crimes, including special defense strategies.

Lawyers of the "Consultant" service provide clients with professional support at all stages of the case, ensuring effective protection of interests and observance of their rights in accordance with current legislation.

New amendments to the legislation create a unique opportunity for military personnel who left the unit or deserted to return to service without serious consequences, if this is done by January 1, 2025. This approach is aimed at supporting the country's defense capability and ensuring social guarantees for those who are ready to continue performing their duties. At the same time, the military must act quickly and thoughtfully, because after the specified deadline, returning under a simplified procedure will become impossible.