The Verkhovna Rada Committee on Law Enforcement Activities recommended that the parliament adopt in the first reading bill 13260 on amendments to the Criminal Code and the Criminal Procedure Code, which will eliminate problems with the procedure for exempting from criminal liability military personnel who have been reinstated in service and who previously committed a criminal offense or desertion.
The fact is that a certain number of servicemen have now appeared who voluntarily and on time returned to service and were reinstated by their commanders.
However, they cannot use the grounds for exemption from criminal liability, since they cannot provide the court with the written consent of the commander (chief) of the military unit for the renewal and continuation of military service by such a person, since they have already been renewed for military service and are serving it.
Bill 13260 introduces a provision, item 24, to the transitional provisions of the Criminal Code, which divides persons who, before the entry into force of this planned new law 13260, committed a first-time act of desertion or desertion into two categories. Accordingly, item 20-10 will appear in the transitional provisions of the Criminal Code, which regulates the procedure for exemption from criminal liability.
The first – who committed such crimes for the first time before the entry into force of Bill 13260 (the date of entry into force is not yet known, because it has not been adopted). They may be exempted from criminal liability on the grounds and in the manner that were in effect before the new law entered into force.
For this category, the prosecutor or court, having established at the stage of pre-trial investigation or court proceedings the existence of grounds for exempting such a person from criminal liability, must also obtain written consent from the commander (chief) of the military unit (institution) on the possibility of continuing military service.
The list of military units (institutions) whose commanders (chiefs) are authorized to provide written consent is determined by the central executive authorities, which, in accordance with the law, exercise leadership over the Armed Forces of Ukraine and other military formations.
In the event of the court closing criminal proceedings and releasing the suspect or accused from criminal liability, the court shall, by its ruling, oblige the released person to arrive at the relevant military unit or place of service no later than 72 hours from the date such ruling enters into legal force, and the commander of the military unit (institution) shall reinstate such person in military service on the day of his or her arrival.
The second category - are those who voluntarily returned to the relevant military unit or place of service and continued to perform military service duties. They are exempt from criminal liability if, after returning to the unit or place of service, they continued to perform military service duties for at least 3 months, and in the event of the end of martial law or discharge due to health conditions, regardless of the period of military service after returning to the military unit (place of service).
Having established at the stage of pre-trial investigation or court proceedings the existence of grounds for exempting such a person from criminal liability, the prosecutor or court must also obtain a relevant document, which indicates the confirmation of the commander (chief) of the military unit (institution) about the date and time of the person's voluntary return to the relevant military unit (place of service) and the duration of such person's military service after return.
For both categories, the prosecutor's motion to release a person from criminal liability must also be accompanied by the written consent of the commander (chief) of the military unit (institution) on the possibility of the suspect continuing military service or a corresponding document indicating the commander's (chief) confirmation of the date and time of the person's voluntary return to the relevant military unit (place of service) and the duration of service after return.
Thus, the main set of changes concerns the transitional provisions of the Criminal Code and the Criminal Procedure Code.
In accordance with Article 401 of the Criminal Code, Part 5 is excluded, which currently establishes that a person who committed desertion or desertion for the first time may be exempted from criminal liability if he voluntarily applied to the investigator, prosecutor, or court with an intention to return to this or another military unit or place of service to continue military service and if there is a written consent of the commander (chief) to continue military service.
As a result of the aforementioned repeal of Part 5 of Article 401 of the Criminal Code, the provision stating that, in the event of grounds for exemption from criminal liability, the prosecutor or court must also obtain the written consent of the commander (chief) of the military unit (institution) is excluded from Article 286 of the Criminal Procedure Code.
Accordingly, it is stipulated that the prosecutor's request must be accompanied by the person's written consent to be exempted from criminal liability (the need for the commander's consent is abolished).
This law also abolishes the institution of suspension of military service for such servicemen during martial law.
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