Deserters will be released from liability under two conditions

The legislative initiative to introduce mechanisms for exempting members of the Armed Forces from criminal liability for committing a military criminal offense deserves support. At the same time, it contains controversial provisions.

This was noted by the UNBA Committee on Criminal Law and Procedure following the analysis of the draft Law No. 11322 dated 06.06.2024 «On Amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine and Other Legislative Acts of Ukraine on Improving Criminal Liability for Crimes Against the Established Procedure for Performing or Completing Military Service during Martial Law».

In particular, the document proposes to supplement Article 401 of the CPC with conditions under which a person who first committed a crime under Article 407 (unauthorized leaving of a military unit or place of service) or Article 408 (desertion) of the Criminal Code may be released from criminal liability:

1) before the end of the pre-trial investigation, the person voluntarily informed the investigator or prosecutor of his/her intention to return to the military unit or place of service to continue military service;

2) the commander (chief) of the military unit (institution) has agreed to the continuation of military service by such person.

If these grounds are present, the prosecutor will have to obtain a written consent of the commander (chief) of the military unit (institution) on the possibility of continuing the military service of the suspect.

Taking into account the provisions of Article 44 of the Criminal Code, the UNBA believes that the wording of the provision «a person may be released from criminal liability» should be replaced with «a person is released from criminal liability».

Also, a person's consent to continue military service must be the result of a positive assessment by the commander of the person's previous performance in the position. However, if the consent can be granted by the commander (chief) of any military unit (institution), the possibility of achieving the goal of the draft law is doubtful. In addition, this approach contains corruption factors.

The full comments and suggestions of the UNBA to the draft law No. 11322 can be found at the link.