Release from criminal liability under Article 401(5)

Facts of the case: the defendant, a mobilised service member, left his place of service without authorisation and was absent from 15 to 28 August 2023, spending the time as he chose. On 28 August 2023, he returned to the unit’s location and stated his intention to continue military service. In addition, while serving, he intentionally committed disobedience under martial law by openly refusing to obey a superior’s order.

Positions of the trial and appellate courts: the lower courts found the defendant guilty and convicted him under Articles 402(4) and 407(5) of the Criminal Code.

In the cassation appeal, defence counsel argued that the courts had wrongly convicted the defendant under Article 407(5) for unauthorised absence, failing to take account of the established fact that the soldier had returned voluntarily and continued serving. Counsel maintained that Article 401(5) required his release from criminal liability and closure of the proceedings under Article 284 of the Criminal Procedure Code for lack of the elements of an offence.

Position of the Criminal Cassation Court: the lower courts’ decisions were set aside insofar as they convicted the defendant under Article 407(5). He was released from criminal liability under Article 401(5), 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 relevant conditions had been established: the service member’s voluntary return and continued service, the commander’s written consent in the form of an order, and the defendant’s first commission during martial law of an offence under Article 407. These conditions justified release from criminal liability under Article 401(5).

Concerning the procedure for implementing release from criminal liability under the second paragraph of Article 288(3) of the Criminal Procedure Code, which governs closure of proceedings on that ground, the panel stated the following.

The panel considered that those circumstances did not prevent the Supreme Court from applying Article 401(5), read together with Article 58 of the Constitution of Ukraine and Article 5 of the Criminal Code, to decide whether to release the defendant from criminal liability. The relevant provisions of the Criminal Procedure Code do not make release conditional on the person still being in military service when that decision is made.

Furthermore, Article 44(1) of the Criminal Code provides that a person who has committed a criminal offence shall be released from criminal liability in the cases prescribed by the Code.

In applying Article 401(5), which states that a person “may” be released from criminal liability, the Supreme Court read that provision in conjunction with the mandatory rule in Article 44(1).

Under the Supreme Court’s established practice, the General Part of the Criminal Code determines the meaning and direction of provisions of the Special Part, which apply only to the extent that they do not contradict the General Part.

The Supreme Court therefore found no legislative basis for restricting Article 401(5) by any additional conditions or circumstances not expressly stated in that criminal-law provision or other provisions of the Code concerning release from criminal liability.