Exemption from criminal responsibility for SZCH

On August 20, 2024, the parliament approved a draft law according to which persons who have voluntarily left a unit or deserted for the first time are exempted from criminal liability for SZH. The main condition is that the soldier must independently return and continue his service. The above decision won 270 votes of deputies (legislative initiative No. 11322).

The main purpose of the Law is to improve the current criminal legislation in the conditions of martial law. In particular, amendments to Article 401 of the Criminal Code are foreseen. In this article, we will consider the main features of exemption from criminal responsibility for the SZH.

SZCH: composition and circumstances of the crime

The composition of the crime according to Article 407 of the Criminal Code of Ukraine is the voluntary leaving of the place of service or a military unit by a serviceman for a period of more than one day without the presence of relevant permission documents. The main evidence in the process of proving the guilt of a serviceman is: testimony of witnesses, reports, audio and video materials, electronic correspondence, etc.

Let’s consider the issue of responsibility for SZH:

Conditions for exemption from liability for SZCH

According to the draft law adopted in the first reading, changes are made simultaneously to:

• of the Criminal Code.
• Criminal Procedure Code of Ukraine.
• Law of Ukraine “On Military Duty and Military Service”.

It is very important to note that a person can be exempted from liability for SZH in the presence of the following conditions:

1. By the time the pre-trial investigation is completed, the serviceman must declare his intention to return to service.
2. Such a decision of the military must be agreed with the commander of the military unit.
3. Implementation of SZH for the first time.

If a soldier commits a serious crime (robbery, murder, robbery) during the SZH, the preventive measure cannot be changed.

In addition to the above, the draft law regulates the validity of the contract and the continuation of military service for those servicemen who are already serving a sentence for SZH. Criminal punishment can be revoked.

How will the release from punishment for SZC be carried out?

Exemption from criminal responsibility for SZCH is possible only on the basis of the request of the prosecutor. This means that it is the prosecutor who must obtain information from the serviceman regarding his desire to return to military service. The next stage is confirmation of such a decision by written consent from the commander of the military unit where the serviceman is serving. After that, you need to issue a request. It is sent to the court without conducting an appropriate pre-trial investigation.

If a serviceman is in custody at the stage of the pre-trial investigation, he can apply to the prosecutor with a corresponding petition. This petition must contain the initiation before the court or judge of the issue regarding the cancellation of his detention. Such requests should be considered urgently.

If a decision is made to close the criminal proceedings, the service resumes from the moment the serviceman arrives at the place of service. At the same time, cash payments are being renewed and other types of provision (material, food), benefits and social guarantees established by current Ukrainian legislation are being implemented.

It is worth noting that this draft law may be changed during its finalization and adoption in the second reading.

It is quite often that cases under the SZH are initiated erroneously, and in some cases – illegally. The algorithm of actions in such criminal proceedings will depend on the professionalism of the lawyer who will represent your legal interests. Specialist lawyers Prykhodko and Partners will be able to protect you from bringing the case of SZCH to court.

It is very important for us to ensure compliance with all the legal rights and interests of military personnel who oppose our enemies. Lawyers Prykhodko and Partners will make all necessary efforts for your vindication.

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