Voluntary return to service after unauthorised absence

Facts of the case: a mobilised service member holding the rank of private and serving as a driver in a military unit’s motor transport section left the unit without authorisation or valid reason on 11 April 2022 and remained absent until 6 June 2022.

Positions of the trial and appellate courts: the lower courts found the defendant guilty and convicted him under Article 407(5) of the Criminal Code.

In the cassation appeal, defence counsel requested that the defendant be released from criminal liability under Article 401(5) of the Criminal Code and that the criminal proceedings be closed.

Position of the Criminal Cassation Court: the lower courts’ decisions were set aside. The service member was released from criminal liability under Article 407(5) pursuant to Article 401(5) of the Criminal Code, and the proceedings were closed under Article 284(2)(1) of the Criminal Procedure Code.

Reasoning of the Criminal Cassation Court: the panel stated that the legislature links the possibility of release from criminal liability to a person’s voluntary expression of a wish to continue military service, demonstrating a willingness to fulfil military duties and remedy the consequences of earlier unlawful conduct.

In these proceedings, the defendant had not submitted a written application to an investigator, prosecutor or court expressing an intention to return to the unit or place of service and continue serving. However, the panel relied on the circumstances of this case: after leaving without authorisation, the defendant reported for service, as recorded in an extract from the commander’s order; his pay was restored and he was subsequently added to the ration list. He therefore continued military service in accordance with the applicable legislation. In legal nature, this corresponded to the requirement of a voluntary application under Article 401(5) of the Criminal Code.

The panel accordingly concluded that the requirement of a voluntary application was satisfied in this case because the defendant expressed his will by actually returning voluntarily and continuing his service.

Another condition for applying Article 401(5) is the unit commander’s written consent to the person’s continued military service. The panel noted that neither that provision nor Articles 286 and 287 of the Criminal Procedure Code prescribe a particular form for the commander’s written consent, whether a letter, order or instruction.

After voluntarily returning to the unit’s temporary location, the defendant was recognised by the commander’s order as having reported for duty and continued serving. The panel therefore regarded that order as proper written confirmation of the commander’s consent and as satisfying one of the conditions under Article 401(5) of the Criminal Code.

A first-time offender is a person who has not previously committed any act specified in the Special Part of the Criminal Code. In practice, this is indicated by the absence of an unexpired or unexpunged conviction for an earlier criminal offence and of criminal proceedings initiated in connection with any offence committed by that person. Legally, first-time offenders also include persons who previously committed a criminally punishable act but were acquitted of the charge; lawfully released from criminal liability; rehabilitated; convicted without a sentence or exempted from punishment; or served a sentence for an act whose criminality and punishability were subsequently abolished by law. Under Article 88(3) and (4) of the Criminal Code, such persons are regarded as having no criminal record.

It is also necessary to distinguish the application of Article 401(5) where a person is accused of several separate offences in the same or different criminal proceedings. This includes repeated or multiple offences in one set of proceedings without a conviction for another episode of socially dangerous conduct under Articles 407 or 408, and situations in which another episode is being tried or investigated in separate proceedings against the same person, or no such proceedings exist. This distinction rests on the presumption of innocence.

Where, at the time a court assesses a particular act under Article 401(5), other courts in other proceedings have not given the same person’s other conduct a legal assessment that would preclude applying that provision, the court may treat the act before it as a first offence. Otherwise, it would rebut the person’s presumption of innocence in respect of acts that had not been tried. Assessing conduct outside the subject matter of the proceedings before it would clearly violate that fundamental human right.

Since a court cannot legally assess a person’s conduct that falls outside the criminal proceedings it is trying, it likewise cannot assess the conduct before it on the basis of other acts that are not being tried in those proceedings and for which no other court has delivered a conviction.

For the purposes of Article 401(5), the offence under Article 407(5) charged in this case is regarded as a first offence. No other offence had been established in the manner prescribed by law, and the court cannot legally assess the person’s acts beyond the charge brought.

Nor was it established that criminal proceedings had been opened against the defendant, or that he had been convicted, for another instance of leaving the unit without authorisation. The court therefore could not assess acts that were not being tried in these proceedings and for which another court had not delivered a conviction.

It was in this context that the Supreme Court assessed the information in the commander’s order stating that the defendant had also been absent without authorisation from 8 July 2024 to 8 October 2025 and had been regarded as not performing his military duties.

For the purposes of Article 401(5), the Supreme Court therefore disregarded that information in the extract from the commander’s order. Without a corresponding charge in this case or a judgment concerning those circumstances in another case, it was not a proper basis for finding repeated commission of an offence under Article 407(5). The circumstances indicated that the defendant continued military service until his discharge in execution of the judgment in this case, while there were grounds to regard the offence of which he was convicted as his first.

The panel concluded that the necessary conditions were established: the service member’s voluntary return to the unit and continued service, the commander’s written consent in the form of an order, and first-time commission during martial law of an offence under Article 407. These conditions justified release from criminal liability under Article 401(5) of the Criminal Code.