ULUs and desertion: should military service be suspended?

The voluntary return to service of servicemen who have left military units without permission or deserted the Armed Forces may result in the resumption of service without complicated conditions. At the same time, the refusal to suspend military service is not justified.

The Committee of the Ukrainian National Bar Association on Military Law analyzed the draft Law No. 12095 dated 04.10.2024 «On Amendments to Part Two of Article 24 of the Law of Ukraine «On Military Duty and Military Service», which was adopted by the Verkhovna Rada as a basis.

According to part 2 of Article 24 of the Law «On Military Duty and Military Service», military service is suspended for servicemen who have arbitrarily left military units or places of service, deserted or voluntarily surrendered, unless otherwise provided by law. The suspension of service begins on the day the relevant information is entered into the Unified Register of Pre-trial Investigations.

The authors of the legislative initiative say that the continuation of service for such servicemen during martial law is possible only if the court has delivered an acquittal that has entered into force, closed criminal proceedings in accordance with paragraphs 1, 2, 3 of part 1 of Article 284 of the CPC, or the court has issued a decision to close criminal proceedings and release from criminal liability on the basis provided for in part five of Article 401 of the Criminal Code. Thus, servicemen who have expressed a desire to voluntarily return to their units and continue their service after unauthorizedly leaving their units or places of service are deprived of this opportunity, as commanders are authorized to continue military service and the contract, resume payments of cash and food, clothing, and other types of support only on the basis of relevant procedural documents of investigative and judicial authorities.

In view of this, it is proposed to introduce a provision according to which military service for servicemen who have arbitrarily left military units or places of service or deserted is not suspended during martial law.

The UNBA supported the MPs' desire to improve the efficiency of military service and the legal status of servicemen. Including those who are suspected or accused of committing criminal offenses, such as unauthorized leaving of a military unit or place of service (Article 407 of the Criminal Code) and desertion (Article 408 of the Criminal Code).

At the same time, the Chairman of the UNBA Committee, Maria Ostrovska, insists that the current provision on the suspension of military service for those who have left it without permission is quite logical and should be left in its current version. It is possible to get commanders to resume military service without consent and court decisions through other legislative constructions.

For example, part 2 of Article 24 of the Law could be supplemented with the following paragraphs:

«In case of voluntary return to military service and expression of readiness to continue serving by those servicemen who have arbitrarily left military units or places of service or deserted for the first time, military service and the contract shall be continued from the date of their arrival at military units or places of service, payments of monetary and food, clothing and other types of support, benefits and social guarantees established by the legislation of Ukraine shall be resumed».

The same rules now apply to other categories of military personnel after certain court decisions are made.

In addition, the novelty should be harmonized with the recently introduced changes on obtaining the consent of the commander to continue military service in order to be released from criminal liability.

This can be done by adding another paragraph to the mentioned provision:

«Obtaining the consent of the commander or head of the military unit to continue military service is required only if the court considers the issue of exemption of the serviceman from criminal liability».

The full comments and suggestions of the UNBA Committee on Military Law to the Draft Law No. 12095 can be found here.