Legislative innovations for conscripts: what changed in September

September 2024 became a turning point in legislative issues related to military service and mobilization. Some of these changes were long-awaited, while others came as a surprise to both conscripts and those who provide legal aid. In the conditions of war, these issues are particularly acute: new challenges for the state, an increase in the number of mobilization waves, as well as the constant need for rapid adaptation of legislation to the realities on the front. These changes not only affect those already in the military, but also those who may still be drafted.

Lawyers of the “Repeshko and Partners” Bar Association commented on the key innovations in the legislation, explained their essence and provided recommendations on what to pay attention to in the new conditions.

News related to the rights and duties of military personnel or conscripts become absolute hits in the mass media. Opening the news, you never know what color it carries – more positive or negative. Legislators continue to make changes to the regulations governing military relations. It should be noted that the changes that have appeared recently are really positive and long-awaited. This is exactly the rare case when the initiative of the state goes to the benefit of the average citizen. So, the following issues have been addressed in recent weeks.

Postponement of conscription for non-consanguineous brothers and sisters of those killed and missing in war

On August 21, 2024, the Verkhovna Rada of Ukraine adopted a law according to which the following are not eligible for military service during mobilization for a special period:

1. Women and men whose close relatives (husband, wife, son, daughter, father, mother or biological (consanguineous, non-consanguineous) brother or sister) died or went missing during an anti-terrorist operation from among:

– servicemen or employees of military formations formed in accordance with the laws of Ukraine, which protected the independence, sovereignty and territorial integrity of Ukraine, who died or went missing during direct participation in an anti-terrorist operation, ensuring its conduct, being directly in the areas of the anti-terrorist operation during its conduct;

– employees of enterprises, institutions, and organizations who were involved in ensuring the conduct of an anti-terrorist operation and died or went missing while ensuring the conduct of an anti-terrorist operation directly in the districts and during its implementation;

– persons who died or went missing during direct participation in the anti-terrorist operation, ensuring its implementation, being directly in the areas of the anti-terrorist operation during its implementation as part of voluntary formations that were formed or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine, provided that in the future such volunteer formations were included in the composition of military formations and law enforcement agencies formed in accordance with the laws of Ukraine;

– persons who died or went missing during direct participation in an anti-terrorist operation, ensuring its implementation, being directly in the areas of its implementation as part of voluntary formations that were formed or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine, but in the future such volunteer formations were not included in the composition of military formations and law enforcement agencies formed in accordance with the laws of Ukraine and performed the task of anti-terrorist operations in cooperation with military formations and law enforcement agencies formed in accordance with the laws of Ukraine.

1. Women and men whose close relatives (husband, wife, son, daughter, father, mother or biological (consanguineous, non-consanguineous) brother or sister) died or went missing during the implementation of measures to ensure national security and defense, repel and deter armed aggression of the Russian Federation in the Donetsk and Luhansk regions, as well as during the provision of national security and defense, repelling and deterring armed aggression against Ukraine during martial law.
2. Family members (husband, wife, son, daughter, father, mother, biological (consanguineous, non-consanguineous) brother or sister) of persons who were posthumously awarded the title of Hero of Ukraine for civic courage, patriotism, heroic defense of the constitutional principles of democracy, human rights and freedoms, selfless service to the Ukrainian people, revealed during the Revolution of Dignity (November 2013 – February 2014).

Until May 18, 2024, non-consanguineous sisters and brothers had the right to deferment, but in connection with the adoption of the new law, they lost it. Currently, this right has been returned.

We will remind that brothers and sisters who have only one common father or mother are considered non-consanguineous, for example, there may be one mother, but three children from their own parents. Such children will be half-kin to each other. However, we draw your attention to the fact that the adopted norm applies exclusively to the postponement of conscription and is in no way a reason for dismissal from military service.

Voluntary abandonment of a military unit (SZCH) and exemption from criminal responsibility

A number of articles of the Criminal Code of Ukraine (CCU) regulate military issues, among them there are two articles that regulate the SZH:

1. Art. 407 of the Criminal Code of Ukraine provides criminal liability for a military serviceman for voluntarily leaving a military unit or place of service for more than three days, committed under martial law, from 5 to 10 years of imprisonment.
2. Art. 408 of the Criminal Code of Ukraine provides for criminal liability for a military serviceman for desertion, i.e. voluntarily leaving a military unit or place of service with the purpose of evading military service, as well as failure to report for service for the same purpose in the event of assignment, transfer, business trip, leave, or medical leave institution, committed under conditions of martial law or in a combat situation, from 5 to 12 years of imprisonment.

According to the Office of the Prosecutor General, in the first half of 2024, law enforcement officers across Ukraine opened almost 29,800 new criminal cases related to the SZH: 18,600 under the article on voluntary abandonment of a military unit and 11,200 under the stricter “Desertion”.

The fact is that during the adoption of the Civil Code there were times of peace and this article was intended for professional soldiers or conscripts for military service. In any case, the listed citizens entered the ranks of military personnel planned and deliberately. Behind the fence of the military unit, peaceful life was raging and it was not a problem to get a leave, for example, to bury a parent. In addition, military personnel were drilled for quite a long time, explaining what the military statute is and what the consequences of its violation are.

Nowadays, yesterday’s trolleybus drivers and office managers find themselves in a hellish situation. They do not have time to thoroughly study military discipline – they need to learn how to use weapons and survive in the conditions of a real battle in a minimally short period of time. Not all of them got there voluntarily or even “semi-voluntarily”. Some have family circumstances, for example, the death of a loved one, but the commander does not always have the opportunity or even the desire to release a fighter on him. At the same time, not all fugitives wanted the SZH irrevocably.

Taking into account the mentioned circumstances, on August 20, 2024, the Verkhovna Rada of Ukraine adopted a law that regulated the issue of SZH, namely, the possibility of exemption from criminal liability. So, according to the new norm:

“A person who during the martial law for the first time committed a criminal offense provided for in Articles 407, 408 of this Code may be released from criminal liability in the manner provided for by the criminal procedural legislation of Ukraine, if he voluntarily applied to the investigator, prosecutor, court for the intention to return to this or another military unit or to the place of service for the continuation of military service and in the presence of the written consent of the commander (chief) of the military unit (institution) for the continuation of such a person’s military service”.

However, the following conditions are necessary for exemption from criminal liability in the case of SZH:

• a military serviceman may be released from criminal liability for committing a crime provided for in Art. 407, 408, if he committed such a crime for the first time. The key in all this is the word “can”, and therefore exemption from criminal responsibility is not unconditional;
• a serviceman who first committed the crime provided for in Art. 407 or 408 of the Criminal Code must voluntarily apply to the investigator, prosecutor or court and express a desire in such a request to continue military service. Therefore, there must be a voluntary manifestation of will before returning to military service;
• a military serviceman must first obtain consent from the commander of a military unit to continue military service. This clause provides for the transfer of the situation to the discretion of the unit commander, and therefore depends entirely on him.

Thus, the person who first committed the crime provided for in Art. 407 or 408 of the Civil Code, must obtain the written consent of the commander of a military unit for the continuation of such a person’s military service and submit a written petition to the investigator, prosecutor or court about the intention to return to this or another military unit or to the place of service to continue military service. Along with the petition, the written consent of the commander of the military unit for the continuation of such a person’s military service is submitted. In the future, when considering the case in court, the criminal proceedings should be closed and exempted from criminal responsibility on the basis of part 5 of Art. 401 of the Criminal Code of Ukraine.

In the decision of the court to close the criminal case on the basis of part 5 of Art. 401 of the Criminal Code of Ukraine must be specified:

• a dismissed person is immediately reinstated in military service;
• the serviceman is obliged to arrive at the relevant military unit or place of service within 72 hours to continue military service.

The decision enters into force within 5 days if the decision was issued by the investigating judge at the pre-trial investigation stage (when the serviceman has the status of a suspect), and within 7 days during the trial (when the serviceman has the status of the accused).

In particular, we would like to point out that in the case of a repeated felony conviction, exemption from criminal liability is not possible. It is also necessary to know that exemption from criminal responsibility is not unconditional and not guaranteed, because in the event that the commander of a military unit refuses to sign the consent for the return of a soldier to the unit, there will be no exemption from criminal punishment.

Simplifying the deferment for those who care for relatives with disabilities

By Resolution No. 930 of August 16, 2024, the Cabinet of Ministers of Ukraine simplified the procedure for obtaining a deferment due to the care of a person with a serious illness or disability. The act of establishing permanent care now does not need to be drawn up as if the conscript already receives monetary compensation from the state for taking care of relatives of the first degree of kinship, in particular, parents with disabilities of the 1st and 2nd groups. In this case, it will be enough to show the TCC and SP documents that confirm this, as well as a document that confirms the disability of one of the parents, as well as a document that confirms family ties – a birth certificate.

Also, in accordance with the mentioned Resolution, conscripts engaged in constant care of a sick wife (husband), child and/or their father or mother do not indicate in the application information about the presence of other able-bodied family members who are obliged and can carry out constant care. Thus, in fact, when a conscript applies for a postponement of mobilization due to the need to care for relatives of the first degree of kinship, it is now not necessary to prove the absence of other able-bodied family members who could provide such care.

A number of draft laws related to military issues are being considered by the Verkhovna Rada of Ukraine. But until they are adopted, we believe that it makes no sense to comment on them now, since it is not known what the final version will be and when exactly they will be adopted and enter into force. As they say, there will be more…