Proceedings against military personnel following AWOL require clear deadlines — UNBA

A soldier’s return to duty after AWOL does not necessarily mean the end of criminal proceedings. To ensure that the case does not remain at the pretrial investigation stage, a clear procedure for the investigator and prosecutor is required.

This issue was highlighted by the UNBA Committee on the protection of victims of armed aggression against Ukraine, compensation mechanisms and European integration legal support for recovery. In response to a request from the Verkhovna Rada Committee on law enforcement, advocates reviewed Draft Law No. 16074 of September 15, 2026 «On amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine and the Law of Ukraine «On military duty and military service» regarding the improvement of the procedure for exemption from criminal liability for military criminal offenses related to unauthorized absence from a military unit or place of service under martial law and other matters».

The document proposes replacing the exemption from criminal liability under Part 5 of Article 401 of the Criminal Code with a new ground for dismissing proceedings under Article 284 of the Code of Criminal Procedure. This applies to military personnel who, during martial law, committed an offense for the first time under Article 407 (Unauthorized Absence from a Military Unit or Place of Duty) or Article 408 (Desertion) of the Criminal Code, voluntarily returned, and continued their service. On the day service is resumed, the commanding officer must notify the prosecutor’s office, the pretrial investigation authority, and the Military Law Enforcement Service in writing.

According to advocates, the mechanism requires additional regulatory clarification regarding the future course of criminal proceedings. In practice, the lack of a clear procedure for coordination between the military unit, the pre-trial investigation authority, and the prosecutor leads to a situation where the service member has already had all applicable benefits reinstated, while the proceedings remain at the pre-trial investigation stage. This creates legal uncertainty for both the service member and the command.

Therefore, the UNBA proposes amending Part 4 of Article 284 of the Code of Criminal Procedure with the following procedure: Upon receiving written confirmation from the commander, the investigator shall conduct a full pre-trial investigation within two months and, if there are grounds to issue a notice of suspicion, shall forward the case materials to the prosecutor. The prosecutor must, within 72 hours of the notice of suspicion, either decide to close the proceedings or issue a reasoned ruling refusing to close them. Grounds for closing the case include the offense being committed for the first time and confirmation from the commander regarding the date of return, as well as the number and date of the order to continue service.

Advocates consider closing the proceedings without notifying the suspect of the charges to be unacceptable: it is precisely the status of a suspect that makes it possible to assess whether the offense was committed for the first time. Clear time limits are intended to prevent unjustified delays in the investigation and ensure the prompt restoration of the military personnel’s legal status.

The UNBA is convinced that such a procedure will align with the very purpose of the bill — to create an effective mechanism for the return of military personnel to service and to resolve the legal consequences of their return.

The full text of the comments and proposals can be viewed at this link.