Failure to report for service and the absence of a written order

Facts of the case: on 6 December 2022, a mobilised service member, seeking temporarily to evade military service, deliberately left his unit’s temporary location without authorisation. Until 9 March 2023 he took no steps to return, did not notify the chain of command or military or civilian authorities of his whereabouts and remained outside the unit unlawfully.

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 argued that the lower courts had incorrectly classified the defendant’s actions because the subjective element of the charged offence was absent. Counsel also challenged the testimony of the defendant’s commander because they had been in conflict.

Position of the Criminal Cassation Court: the lower courts’ decisions were upheld.

Reasoning of the Criminal Cassation Court: the panel stated that the case materials showed that all personnel had been billeted elsewhere following a large-scale attack on the unit. This arrangement did not relieve them of military duties. The defendant knew that living in an apartment rather than on the unit’s premises did not end his military service or relieve him of his duties, including reporting for service; his own testimony confirmed this.

The lower courts also took into account that he was serving under martial law after a missile strike on the unit. Many orders and instructions were therefore communicated orally or by messaging applications, as both witnesses and the defendant confirmed when questioned. This refuted counsel’s claim that the defendant had received no order or instruction to report on 6 December 2022.

The panel considered that the mere absence of an individual written order requiring the defendant to report specifically on 6 December 2022 did not negate his duty to remain at the command’s disposal and report to perform tasks.

The defence’s arguments that the subjective element was absent were unpersuasive. As the lower courts established, the defendant knew his duties and had a real opportunity to perform them, yet failed to do so without valid reasons. He took no steps to report for service until 9 March 2023 and did not contact law-enforcement or other state authorities, although objectively able to do so.

The commander also explained that the defendant had previously failed to report on several occasions but had then made contact, given reasons, and received accommodation from the command. On the last occasion, however, he warned no one and was out of contact for several days, leading to his being reported as absent without authorisation.

In these circumstances, the panel agreed with the trial court that this change in behaviour demonstrated direct intent temporarily to evade military service.

The panel was critical of counsel’s argument that the commander had used physical violence against the defendant and that his witness evidence should therefore be disregarded. That allegation was not substantiated at trial. The witness stated that the defendant’s report about the conflict was unofficial and improperly prepared, so it did not acquire the status of an official document and was not referred for action. The defendant’s own testimony also indicated that he had not complained to the competent authorities about abuse of power by the commander and that no internal investigation had been conducted.

The panel agreed with the appellate court that even a personal or disciplinary conflict with the commander gave the defendant no right unilaterally to stop serving, break contact with the command and take no legal steps to protect his interests. The courts had therefore reasonably refused to regard the conflict as a valid reason for his prolonged failure to perform military duties.