Specific aspects of criminal liability for desertion under martial law in Ukraine

Abstract

The article presents a comprehensive study of the features of criminal prosecution for desertion and other criminal offenses against the established procedure for military service under martial law. The relevance of the topic is due to a significant increase in the number of criminal offenses provided for in Articles 407–409 of the Criminal Code of Ukraine under conditions of prolonged armed aggression against Ukraine, as well as the need to ensure an adequate level of military discipline and the state's defense capability.

The purpose of the study is a comprehensive criminal-legal and criminological analysis of the features of criminal prosecution for desertion and other military criminal offenses, identification of problems of law enforcement practice, and development of proposals for improving the criminal legislation of Ukraine under martial law.

In the process of research, a complex of general scientific and special-legal methods of cognition was used, in particular: dialectical, formal-logical, system-structural, comparative-legal, statistical and analytical methods. Using the statistical method, data from the Unified Register of Pre-Trial Investigations on criminal proceedings related to desertion and other military criminal offenses were analyzed. The formal-legal method was used when analyzing the provisions of criminal legislation and judicial practice.

The paper analyzes the current state of scientific development of the issues of criminal liability for desertion, characterizes the main scientific approaches to determining the legal nature of the relevant criminal offenses and the problems of their qualification. Special attention is paid to the issues of distinguishing desertion from unauthorized abandonment of a military unit or place of service, the features of establishing the subjective side of a criminal offense, as well as the problems of proving the special purpose of evading military service.

Based on statistical data, an analysis of the dynamics of criminal proceedings regarding desertion during the period of martial law was conducted. It was established that during 2022–2026, investigators of the National Police of Ukraine conducted pre-trial investigations in more than 40 thousand criminal proceedings of this category, with the vast majority of them being registered in 2024–2026. The regional features of the spread of these criminal offenses were studied, and the practice of applying preventive measures, which is characterized by the predominant use of detention, was also analyzed.

The article identifies the main problems of criminal liability for desertion during martial law, including: a significant burden on pre-trial investigation bodies, the complexity of proving intent and special purpose, a high level of latency of the relevant criminal offenses, the lack of unity of judicial practice, as well as the need to ensure a balance between the interests of the state in the field of defense and compliance with the rights of servicemen.

The results of the study found that the current state of criminal law response to desertion requires further improvement at both the legislative and law enforcement levels. The need to improve the mechanisms of pre-trial investigation of military criminal offenses, ensure the unity of judicial practice and increase the efficiency of mechanisms for ensuring military discipline in martial law conditions is substantiated.