Lawyer at the SZCH (407 KKU): Protection of the rights of military personnel

BASE (basic) 6.08

advertisement

Симиренко Ганна

Lawyer

Ukraine / Kyiv

i

Reading time: 17 minutes Total views: 33

Rate:

0

Publication date: 12.07.2024

Лоер

Lawyer for Unauthorized Leave from Military Service (Article 407 of the Criminal Code of Ukraine): Protecting the Rights of Servicemen

In today's reality, military personnel are required to exhibit maximum responsibility and discipline. However, situations sometimes arise where soldiers leave their military units without permission. Such an action is classified as unauthorized leave from a military unit and falls under Article 407 of the Criminal Code of Ukraine. In these cases, a lawyer specializing in unauthorized leave becomes an indispensable defender of the serviceman's rights.

Article 407 of the Criminal Code of Ukraine

Article 407 of the Criminal Code of Ukraine provides for liability for unauthorized leave from a military unit or place of service. This article has several parts that determine the measure of punishment depending on the circumstances and the duration of the serviceman's absence.

First Part: Covers cases where a serviceman leaves a unit or place of service for up to three days. The punishment can be arrest for up to six months or restriction of liberty for up to one year.

Second Part: Applies to cases where a serviceman leaves a unit for a period of three to ten days. The punishment may be arrest for three to six months or restriction of liberty for up to three years.

Third Part: Provides for responsibility for leaving a unit for more than ten days or during a special period, which can lead to imprisonment for two to five years.

Unauthorized Leave from a Military Unit: Legal Consequences and the Role of a Lawyer

Forms of Violations Under Article 407 of the Criminal Code of Ukraine:

• Unauthorized Leave from a Unit: A serviceman leaves the place of service or military unit without official permission from the command.
• Failure to Report for Duty Without Valid Reasons: A serviceman does not return to duty within the prescribed period after legally leaving the military unit or place of service, despite having the opportunity to return on time.
• Desertion: A serviceman deliberately avoids military service by fleeing the unit or place of service with no intention to return, constituting a more severe violation under Article 407, and often resulting in harsher legal penalties.

Details of Violations

• Іo, voluntary abandonment of a military unit from a military unit implies that the serviceman leaves the unit or place of service without legal permission, which is a serious breach of military discipline. In contrast, failure to report for duty on time means that a serviceman, having legitimate grounds for temporary leave, does not return at the scheduled time without valid reasons, which is also considered a violation.
• Valid Reasons: Article 407 of the Criminal Code of Ukraine does not define a clear list of valid reasons for failing to report for duty. Possible reasons may include the serviceman's illness, illness or death of close relatives, natural obstacles, vehicle breakdowns, and other significant circumstances. Each case is assessed individually by the court, taking into account the specific circumstances of the case.
• Start of Failure to Report for Duty: The start of failing to report for duty on time without valid reasons is determined by the expiration of the legal period of absence. For example, if a serviceman had 15 days of annual leave, they must return to the unit the day after its expiration.

Actions of a Serviceman with Valid Reasons

Even with valid reasons for not reporting for duty, the serviceman must take measures to avoid criminal liability. They must inform the head of the Law Enforcement Service or the head of the territorial recruitment and social support center (TCC and SS) about the circumstances that make timely arrival impossible. These officials have the right to extend the leave for 10 days after receiving documents confirming the validity of the reasons. They must also notify the commander of the military unit about the serviceman's delay.

Location of the Military Unit and Place of Service

The location of the military unit covers the territory where the unit's divisions and services are located. The place of service is any location where the serviceman performs their duties, including positions in combat zones.

Establishing the Composition of the Offense

To recognize the actions of a serviceman under Article 407 of the Criminal Code of Ukraine as a criminal offense, it is necessary to establish their intention to temporarily avoid military duties, voluntary abandonment of a part. This differs from desertion (Article 408 of the Criminal Code of Ukraine), where the goal is permanent evasion of service.

Pre-Trial Defense

A lawyer under Article 407 of the Criminal Code of Ukraine plays a crucial role in defense during the pre-trial stage. This includes:

1. Consultations and Case Evaluation: The lawyer conducts an initial consultation, analyzes the circumstances of the case, and develops a defense strategy. It is important to understand the motives that led the serviceman to unauthorized leave and to identify possible ways to mitigate the consequences.
2. Evidence Collection: For effective defense, the lawyer assists in gathering all necessary evidence that may confirm the client's innocence or mitigate their guilt. This may include testimonies from fellow servicemen, medical certificates confirming the serviceman's health condition, and other documents relevant to the case.
3. Cooperation with Investigative Authorities: The lawyer participates in investigative actions, represents the interests of the serviceman during interrogations and other procedural actions. The lawyer ensures compliance with the law during the investigation, ensuring that the client's rights are not violated.

Defense in Court

If the case goes to trial, the lawyer plays a key role:

1. Defense Preparation: The lawyer prepares a detailed defense plan, including witness preparation, expert opinions, and other evidence. They analyze all aspects of the case and develop arguments to defend and justify the client's position.
2. Representation in Court: The lawyer represents the client's interests in court, providing professional protection of their rights and interests. They speak at court sessions, question witnesses, file motions and petitions aimed at defending the client.
3. Analysis and Dispute of Evidence: The lawyer analyzes the evidence presented by the prosecution and disputes its credibility and legality. They identify possible violations during evidence collection, point out weaknesses and contradictions in the prosecution's case, which may contribute to an acquittal or reduced sentence.

It is important to have a lawyer for unauthorized leave from military service.

• Seriousness of Consequences: Cases under Article 407 of the Criminal Code of Ukraine can have serious consequences for the serviceman, significantly impacting their future life and career. Penalties for unauthorized leave from a military unit range from a few months' arrest to up to five years' imprisonment, depending on the circumstances of the violation. Even in cases where the punishment is less severe, the serviceman may lose their rank and receive a criminal record, complicating future employment and reintegration into normal life after service. A lawyer can help minimize these negative consequences and provide defense in court.
• Protection of Serviceman's Rights: A lawyer under Article 407 CKU of the Criminal Code of Ukraine helps the serviceman understand their rights and ensures their protection throughout the process, Lawyer at the VDU, Lawyer of the VDU. Servicemen often lack deep legal knowledge, which can complicate their defense in case of prosecution. The lawyer provides legal consultations, explains rights and obligations, and helps prepare for interrogations, hearings, and other procedural actions.
• Knowledge of Legislation: A lawyer specializing in military law under Article 407 of the Criminal Code of Ukraine possesses deep knowledge of the legislation governing military service and responsibility for violations of military discipline. This knowledge allows the lawyer to effectively defend the client, using all possible legal tools. For example, the lawyer can identify procedural violations during the investigation or gather evidence that mitigates the serviceman's guilt.
• Experience in Similar Cases: The lawyer's experience in handling cases under Article 407 of the Criminal Code of Ukraine is invaluable. A lawyer who has successfully defended clients in similar situations knows which arguments and strategies are most effective. The lawyer can predict the development of the case based on previous experiences and adapt their tactics depending on the specific circumstances of the case. Experience also allows the lawyer to quickly and effectively respond to changing situations, which is crucial in cases involving military discipline.
• Professional Approach: The lawyer's professional approach includes not only knowledge of the law and experience but also the ability to work with the client, especially a serviceman who may be under significant stress. The lawyer provides moral support, helps maintain calm and focus, which is important for a successful defense. They also coordinate interactions with the family and commanders, contributing to a better understanding of the situation and forming a defense strategy.
• Fair Trial: One of the lawyer's main goals is to ensure a fair trial. They protect the serviceman's rights at all stages—from pre-trial investigation to court proceedings. The lawyer represents the client's interests in court, files motions and requests, disputes unlawful actions of investigators and accusations, and proves circumstances that may mitigate the punishment or even lead to acquittal.