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Publication date: 22.05.2024
lawyer, 23 years of experience in enforcement.
The procedure for bringing military servicemen to administrative responsibility (drawing up a protocol)
Administrative responsibility of military personnel is a form of legal responsibility for an offense that is not related to the performance of official duties by military personnel and is not criminally punishable. It applies to conscripts, including during the period of their military training on the territory of military units and military facilities.
The object of the offense is usually the proper performance of military service. More details on the composition and features of certain military administrative offenses can be found in the relevant sections of the Scientific and Practical Commentary of the Code of Ukraine on Administrative Offenses edited by Professor S.V. Petkov. to the relevant articles of Chapter 13-B of the Code of Administrative Offenses, in particular, Art. 172-10, 172-11, 172-12, 172-13, 172-14, 172-15, 172-16, 172-17, 172-18, 172-19, 172-20 KUpAP.
Military servicemen are considered to be performing the duties of military service:
- 1) on the territory of a military unit or in another place of work (classes) during working (educational) time, including breaks established by the schedule (schedule of classes);
- 2) on the way to or from service, during business trips, returning to the place of service;
- 3) outside the military unit, if staying there corresponds to the duties of a serviceman or he was sent there by order of the relevant commander (chief);
- 4) during the performance of state duties, including in cases where these duties were not related to military service;
- 6) during the performance of the duty to save human life, protect state property, maintain military discipline and protect law and order.
Military service is a state service of a special nature, which consists in the professional activity of citizens of Ukraine suitable for it in terms of health and age (except for cases specified by law), foreigners and stateless persons, related to the defense of Ukraine, its independence and territorial integrity.
The subject of a special offense is military personnel, conscripts, reservists.
The subjective side is characterized by both intentional and negligent forms of guilt.
Qualifying signs of an offense – participation in the offense of chiefs (commanders) and other managers or their concealment of these offenses by their subordinates; commission of an offense in the conditions of a special period.
In accordance with the provisions of Art. 254 of the Criminal Code of Administrative Offenses, the protocol on a military administrative offense is drawn up within 24 hours from the moment of establishing the data that confirms the fact of the commission of such an offense by a serviceman. At the same time, it is necessary to comply with the requirements regarding the form and content of the protocol established by Art. 256 of the Labor Code of Ukraine.
By order of the Ministry of Defense of Ukraine dated 23.10.2021 No. 329, the Instructions for drawing up protocols and processing materials on military administrative offenses were approved.
Clause 1 of ch. II of the Instructions defines the list of persons who have the right to draw up a report:
commanders (chiefs) of military units (military educational institutions, institutions) in relation to subordinate servicemen (conscripts), including temporarily;
commanders (chiefs) of units authorized to do so by the commander (chief) of a military unit, in relation to subordinate servicemen (conscripts), including temporarily;
officials of the military management bodies of the Armed Forces of Ukraine, the management body of the State Special Transport Service (SST), who are authorized to do so by the relevant heads of the military management bodies, the management body of the SST regarding subordinate servicemen (conscripts), including temporarily;
officials of the management bodies of the Law and Order Service, who are authorized to do so by the respective heads of the management bodies of the Law and Order Service.
Section II of the Instructions contains a list of requirements for drawing up the protocol. The form of the protocol itself is given in the appendix of the specified Instruction.
According to the provisions of clause 2, ch. ІІІ Instructions No. 329, the drawn up protocol and materials on military administrative offenses shall be registered in the Journal of Record of Protocols on Military Administrative Offenses no later than the next day after the protocol is drawn up. In the future, the compiled protocol and materials on a military administrative offense are formed into a case on a military administrative offense.
Also, in accordance with clause 8 of ch. II Instructions No. 329, clause 2, ch. ІІІ of the Procedure for Detention of Convicted, Detained, Arrested and Detained Servicemen, approved by the Order of the Ministry of Defense of Ukraine No. 394 of 03.11.2020, with the aim of ending the military administrative offense provided for in Art. 172-20 of the Criminal Procedure Code, a serviceman may be taken by a representative of a military unit (military management body, DSST management body) to the appropriate management body of the Law and Order Service (a unit of the Law and Order Service in the garrison), i.e., arrested and kept at guardhouse.
In such a case, the operative on duty of the management body of the Law and Order Service (official of the Law and Order Service unit in the garrison) after the delivery of the serviceman (conscript) draws up a protocol on administrative detention and makes an entry in the record book of detained (delivered) persons.
In the event that a representative of a military unit (a military administration body, a DSST administration body) during the transfer of a serviceman (a conscript) to an operational on-duty management body of the Law and Order Service (an official of a Law and Order Service unit in the garrison) did not hand over a copy of the protocol, a certified copy of the protocol within 24 hours after it is drawn up, it is provided by the military unit (military management body, DSST management body) to the management body of the Law and Order Service (subdivision of the Law and Order Service in the garrison).
Within 3 days, the head of the management body of the Law and Order Service notifies the commander (head) of the military unit (head of the military management body, the management body of the DSST) about the protocol drawn up in the management body of the Law and Order Service, the subordinate serviceman (conscript) who committed a military administrative offense and sends him a certified a copy of the protocol.
The commander (chief) of the military unit (the head of the military management body, the management body of the DSST) within 5 days sends to the management body of the Law and Order Service and the relevant prosecutor's office, in the area of activity of which the military unit performs the tasks as assigned (the military management body, the management body of the DSST is located), a certified copy of the protocol drawn up by authorized officials of the military unit.
According to Clause 4 of Sec. ІІІ of the Instructions, the case is submitted by the authorized official who drew up the protocol to his commander (head) of the military unit (the head of the military management body, the management body of the Law and Order Service, the management body of the DSST), for consideration and further referral to the district, district in the place (city , city-district) court at the place of commission of the administrative offense (Article 221 of the Code of Administrative Offenses).
During the consideration of the submitted materials by the commander (head) of the military unit (the head of the military management body, the management body of the Law and Order Service, the management body of the DSST), the validity, correctness, completeness of the protocol and the presence of other materials necessary for the consideration of the case of a military administrative offense are ascertained.
In accordance with clause 5 of ch. ІІІ of Instructions No. 329, the case formed no later than within 3 days from the date of drawing up the protocol, with a cover letter signed by the commander (head) of the military unit (head of the military management body, the management body of the Law and Order Service, the management body of the DSST), is sent to the court and, accordingly, the decision to bring to administrative responsibility is taken by the court.
Legal advice during wartime is necessary in such situations, because a legal aid during wartime or a lawyer in wartime ( lawyer during hostilities ) , when conducting a legal analysis of the documents that became the basis for bringing a military serviceman to administrative responsibility, will determine the grounds for challenging such protocols and court decisions.
Legal service "Consultant" will select a specialist who will provide appropriate legal advice during the war, who will be able to defend the rights of a serviceman in court.
