Top 10 interesting court decisions related to martial law and mobilization in Ukraine. Part 1. Administrative and criminal offenses (failure to appear on the agenda, offenses of military personnel, collaboration activities)

• Responsibility for failure to appear on the agenda.Violation of the procedure for keeping records of persons liable for military service at the enterprise
• Criminal liability for failure to appear on a summons or summons to a military unit
• Drinking alcoholic, low-alcohol drinks or using narcotic drugs, psychotropic substances or their analogues by military personnel
• Collaboration activities

In the news media, articles by lawyers and law firms on the Internet, newly adopted laws are reviewed daily, legal terms sometimes incomprehensible to the common man and other intricacies of Themis are explained. However, they concern mostly theory, which should subsequently develop into practice in the form of court decisions. As one ancient Greek philosopher said: "Theory without practice and practice without theory is nothing." Indeed, one is inseparable from the other. It is impossible to decide the fate of people without the existence of a legislative framework, and in turn, the very existence of laws that are “dead” or not enforced is almost meaningless.

In our articles, we talked about topical and sensitive topics related to those liable for military service during wartime and general mobilization, agendas, military medical commissions, criminal and administrative liability of citizens and the military, compensation payments. We are sure that many after this will be interested to know how things are now in practice, in fact. All judgments below have been issued since the outbreak of full-scale war in 2022, 2023. In the first part of the article, we will touch on the topic of criminal and administrative responsibility of civilians and military personnel during martial law.

You can familiarize yourself with the theory and legislative framework in our article «Administrative and criminal liability for failure to appear on the agenda at the military enlistment office, for evading mobilization. Responsibility for offenses during service». In it, we mentioned that on January 27, 2023, the Law of Ukraine No. 2839-IX came into force, which toughened and more clearly defined administrative and criminal liability in martial law or in a combat situation for military personnel. Now let's look at the practical application.

Responsibility for failure to appear on the agenda.Violation of the procedure for keeping records of persons liable for military service at the enterprise

The topic is megapopular and interesting to many. What will happen for non-attendance on the agenda? We answer. If you did not appear at the military registration and enlistment office on the agenda to clarify the data or to pass the military medical commission (VVK), then you may be held administratively liable under Art. 210-1 CUAO. For such an offense committed during a special period, you face an administrative fine in the amount of UAH 3,400 to 5,100. But that's in theory. But in practice, there are very few such cases of bringing persons liable for military service to responsibility by the heads of military registration and enlistment offices. In part, this can be explained by several reasons: the workload of the TCC and the joint venture (including litigation in other categories of cases), in many cases the illegality of drawing up such protocols and decisions on an administrative offense (which can lead to their cancellation in court), the prohibition established Law of Ukraine 2129 IX for the period of martial law, for the recovery of wages, scholarships, pensions and other income by the executive service, except for alimony.

That is, perhaps, why there are practically no proceedings in the register of debtors, where TCKiSP appears as a recoverer, and a couple of hundred cases under Art. 210-1 for failure to appear on the agenda or for violations committed by officials.

We present to your attention one of the typical cases and a real life story. Citizen October 13, 2022 near the village. Ratno, Volyn region, at the checkpoint, he was informed that he should arrive on October 14, 2022 at the military registration and enlistment office to clarify credentials and undergo a medical examination. The conscript refused to receive and sign the summons. He didn't come to the military office. Two weeks later, I received a letter with a protocol by mail, and on 11/04/2022 - a letter with a decision on a fine for failure to appear in the amount of UAH 5,100. But, not agreeing with the illegal decision of the head of the military enlistment office, he appealed it in court. The plaintiff motivated his disagreement by the fact that he was not properly notified of the date and time of the consideration of the case on the imposition of a fine, he was not explained his rights, was not given the opportunity to submit his explanations, and the protocol was not drawn up with him and was drawn up only on the next day, naturally without his presence.

In the decision, the court agreed with the plaintiff's arguments, recognized the decision of the TCKiSP as unlawful and canceled it along with a fine. Full text of solution can be viewed at the link https://reyestr.court.gov.ua/Review/107632298

But there are also solutions that are completely opposite, where a person who did not appear on the agenda was forcibly taken by the police to the military registration and enlistment office and fined 5100 UAH. The precedent occurred at the end of 2022 in Cherkasy. According to the person liable for military service, who asked to cancel the decision on the fine for failure to appear at the military registration and enlistment office, on September 27, 2022, no summons was handed to him, he did not refuse to receive it, it is impossible to understand from the contents of the protocol the eyewitnesses of what circumstances were the witnesses, who, moreover, were subordinates of the defendant and respective stakeholders. Also, the protocol does not indicate the place and time of the offense, and the decision was issued later than the possible deadlines for bringing to administrative responsibility.

Representatives of the military registration and enlistment office, of course, had their own version of events. It stated that the plaintiff did not appear on the summons issued to him on September 27, 2022 (he refused to receive and sign in the presence of representatives of the military registration and enlistment office and the police) and was taken by the employees of the Cherkasy district police department to the TCKiSP on December 2, 2022 in accordance with the previously issued notice of his search and detention . On the same day, a protocol and a fine were drawn up.

As a result, the court decided that the actions of the plaintiff contained signs of an administrative offense under Part 2 of Art. 210-1 of the Code of Administrative Offenses, and therefore the subject of power lawfully drew up a protocol and a decision on an administrative offense under this article regarding him. Court decision: https://reyestr.court.gov.ua/Review/109012018

According to Article 210-1 of the Code of Administrative Offenses, fines are also issued to responsible employees of enterprises, organizations, local authorities for violations of the "Procedure for organizing and maintaining military records of conscripts and persons liable for military service" approved by the Resolution of the Cabinet of Ministers of Ukraine dated December 7, 2016 No. 921. Be careful! At this At the moment, this order is no longer valid.It was replaced by the recently adopted "Procedure for organizing and maintaining military records of conscripts, conscripts and reservists", approved by the Decree of the Cabinet of Ministers of Ukraine No. 1487 of December 30, 2022. new) because in less than two months the new practice has not yet developed.

To the court with a claim to cancel the decision to impose a fine by the head of the Kramatorsk RTTsKiSP in the amount of 3400 UAH. under part 2 of Art. 210-1 of the CUoAP was addressed by the head of the personnel department of one of the factories in Kramatorsk. We also add that the head of the personnel department turned out to be legally savvy and previously worked as a legal adviser, so he decided to defend his rights. He drew attention to the fact that the resolution on the fine refers to the repetition of the offense, which was not.

The essence of the matter is this. On one unremarkable day, an order came to the plant from the military registration and enlistment office to carry out an alert for military service workers. Nothing unusual, but that's bad luck, exactly the day before, on March 1, 2022, the director declared idle time, and there were no workers at their workplaces. The head of the plant did not lose his head and ordered to carry out the notification of military service workers by sending registered letters to the place of their registration, which was carried out by the plaintiff.

The military registration and enlistment office considered that since not one of the workers appeared to them, it means that the plaintiff did not take measures to notify the employees, moreover, without providing any evidence of this.

The court issued a decision in which it indicated that the appealed decision did not contain any information that the plaintiff was brought under Part 1 of Article 210-1 of the Code of Administrative Offenses during the current year, and the defendant did not prove the presence in the actions of the plaintiff of an administrative offense under namely part 2 of article 210-1 of the Code of Administrative Offenses. The fine was cancelled. The decision has entered into force. Register of judgments: https://reyestr.court.gov.ua/Review/107417464

In the course of the study, we did not identify decisions that would have brought officials to administrative responsibility for violations of military records during the year. But this does not mean that they do not exist at all, but that there may be very few of them.

Criminal liability for failure to appear on a summons or summons to a military unit

Failure to appear on a summons to the military registration and enlistment office is possible both with a fine and imprisonment. It all depends on what TCKiSP wants from you. After clarifying your data and passing the VVK, failure to appear on a mobilization order (summon to dispatch) or on a call from the commander of a military unit entails criminal liability under Art. 336 of the Criminal Code of Ukraine with a real term of imprisonment from 3 to 5 years.

Next, consider the court decision, which was sentenced in 2023. The incident occurred in the Transcarpathian region. The plot of the story is also typical, but it should be noted that the number of such cases is already in the thousands and continues to grow. Many received real terms of imprisonment. In some cases, neither sincere repentance, nor mitigating circumstances, nor an agreement with the investigation to admit guilt, nor tears in the courtroom help to avoid punishment in some cases.

Let's start with something like this. He was liable for military service, arrived on the agenda at the military registration and enlistment office, where he passed the military medical commission on 04/20/2022, according to the results of which he was recognized as fit. But after 3 days, without good reason, he refused military service. In court, the accused admitted his guilt and repented, which is also confirmed by the agreement concluded with the prosecutor on the recognition of guilt. In turn, based on the materials of the case, the judge found him guilty and imposed a sentence of imprisonment for a period of 3 years, but with release from serving a sentence with a probationary period of 1 year (according to Articles 75, 76 of the Criminal Code of Ukraine). Full text in the register of court decisions https://reyestr.court.gov.ua/Review/104556930

Let us emphasize a very important nuance of such widespread cases today. Only when acknowledging guilt and concluding an agreement with the prosecutor is there a very high percentage of the probability of getting a suspended sentence, and not a real one. A 100% guilty plea does not guarantee an acquittal or a suspended sentence.

A similar case, but with a different final from the Sumy region. A man liable for military service in July 2022 passed a medical examination at the military registration and enlistment office and also did not appear at the point of departure without good reason. He did not admit his guilt in court, he believed that the medical examination was carried out for a “tick” and he does not consider himself healthy. He did not show up for duty because he was treating a sore knee in the hospital. The court found the defendant's arguments unconvincing and in January 2023 sentenced him to 3 years in prison. At the moment, the verdict (https://reyestr.court.gov.ua/Review/108400370) is being appealed by the accused.

And in the end, as it should be in good films, let's move on to the plot (case) with a happy ending and an unexpected turn of events.

The version of the prosecution - The accused, being notified by an employee of the military registration and enlistment office of the need to arrive to be sent to a military unit, acting with direct intent aimed at evading service, did not appear at the specified time and place, for which criminal liability is assumed under Art. 336 of the Criminal Code.

The defendant's version is that I admit my guilt in committing a crime, I did not have malicious intent, I passed the military medical commission, I am fit. In July 2020, he received a call from the military registration and enlistment office and was ordered to appear at the departure point, and the next day they called back and said that there was no need to go anywhere. No one else called and he did not go to the military registration and enlistment office. There was confusion and misunderstanding.

The version of the witness (an employee of the military registration and enlistment office). I called the accused on 07/10/2022, offered to come on 07/11/2022 - the day of the planned departure to the military unit. Called the next day but didn't get through. The fact of the phone call was not recorded anywhere. The accused was previously issued a summons, but on a different date - 07/08/2022.

The version (decision) of the court is that the accused is not guilty, because the summons was served on a different date, a phone call is not proper evidence, and such notification was not made in a legal way. Register of judgments: https://reyestr.court.gov.ua/Review/108490989/

Drinking alcoholic, low-alcohol drinks or using narcotic drugs, psychotropic substances or their analogues by military personnel

We will not be mistaken if we say that one of the most common offenses of military personnel in wartime is a weakness for alcohol and other means of entertainment. Tens of thousands of new rulings imposing fines under Art. 172-20 CUAO.

For example, let's talk about one of them issued in the Odessa region at the end of February 2023. A citizen of Ukraine, a native of the village with an interesting name Dedovshchina, Sumy region, while serving in a special period, was identified by the authorities of the border service department with signs of drug intoxication. According to the conclusion of the medical examination, the soldier used plants of the cannabis family. After such an exposure, of course, the offender admitted his guilt. But that is not all. In his written explanations provided to the court, the offender, either of his own free will, or not at all, indicated four more colleagues with whom he used that day. And they, in turn, gave the same explanations to each other. As a result, the "mass crime" was solved, the border was under reliable control, and the country's budget, hopefully, was replenished by UAH 17,000. x 5 = 85000 UAH More details can be found here: https://reyestr.court.gov.ua/Review/109061627

We will also consider for you one interesting exculpatory case. In the judicial practice of recent months, it is no longer a single case.

Quite a standard situation with a completely expected ending, but not in this case. In February 2023, a serviceman was on the territory of a military unit in a state of intoxication. He underwent an examination in the hospital during which the presence of 1.49% per mille of alcohol in the blood was revealed. At the hearing, the offender admitted his guilt and sincerely repented. He said that on that day he decided to celebrate the birthday of one of his children. And then attention, of which he has seven, five of them are minors!

In the decision, the court found him guilty, but taking into account the confession of guilt, repentance, the commission of an offense for the first time, a positive characterization, a request from the military unit not to apply an administrative penalty to him and the presence of seven children, decided, due to the insignificance of the offense committed, to release him from liability, limiting himself to a verbal warning. Judgment: https://reyestr.court.gov.ua/Review/109132616

Such cases are generally closed without the application of penalties for several reasons: the absence of an administrative offense in the actions, the expiration of the terms for bringing to administrative responsibility or the insignificance of the offense.

Collaboration activities

After the occupation of part of the regions of Ukraine, some fellow citizens decided to earn some extra money and work for the occupying authorities. That is to be a collaborator. For those who do not fully understand the meaning of the term, we will explain. Collaborationism is a conscious, voluntary and deliberate cooperation with the enemy, in his interests and to the detriment of his state. However, now that the process of occupation has reversed in some places, Ukrainian courts are beginning to pass sentences on such persons in large numbers under the recently appeared Art. 111 - 1 of the Criminal Code. Punishment for such activities ranges from a ban on holding certain positions and engaging in certain activities to life imprisonment.

Let us give an example of such a sentence, which entered into force in February 2023. After the occupation of the city of Kupyansk, Kharkiv region, a citizen of Ukraine voluntarily took a position related to the performance of organizational, administrative and administrative functions in an illegally created authority. She held the position of a leading specialist in the Department of Humanitarian Aid in the city of Kupyansk in the occupation administration. But the collaboration did not last even two months due to the liberation of the city in early September 2023. At the hearing, the accused admitted her guilt, saying that she did not understand the criminality of her actions. She was forced to cooperate with her difficult financial situation and the presence of two young children. The court found her guilty and sentenced her to 3 years in prison with deprivation of the right to hold positions in public authorities and local governments for a period of 10 years without confiscation of property. Full text of the judgment: https://reyestr.court.gov.ua/Review/108280725/

There are also acquittals for collaborationism.

It happened in one of the villages of the Zhytomyr region. People gathered near the store, discussing various topics. However, the accused publicly began to deny the implementation of the armed aggression of the Russian Federation against Ukraine and justified the actions of the aggressor, also denied the temporary occupation of certain territories of Ukraine. And two days later, in the same place, she pointed out that the armed forces of the Russian Federation would win and liberate the Ukrainian people from the Nazis and the Nazi regime, justifying their actions.

The prosecutor's office during the trial changed the charges and left only one episode. The defendant pleaded not guilty. She reported that she had an unfriendly relationship with one witness, another was an alcohol addict, and the third was a business competitor. The village headman, who wrote a statement against her to the SBU, is himself under investigation for committing a criminal offense and may have testified against her under pressure from law enforcement agencies.

As a result, at the court session, all the witnesses did not give clear and intelligible testimony testifying to the guilt of the accused. The testimonies were from the category - I drove by, I heard from people who and when swore near the store, he does not remember. The court had no choice but to issue a verdict of not guilty, because proper and admissible evidence was not established to convict the accused of committing the specified criminal offense. Judgment for collaborationism: https://reyestr.court.gov.ua/Review/108894798/

Let's summarize. We see that in wartime many new laws and amendments to them have been and will be adopted. The "theory" is changing and in the form of tens of thousands of court decisions is being translated into practical application. Naturally, there is an abundance of questions and sometimes contrary decisions of the courts. This is the inevitable result.

In the second part of the article we will tell you about ...

Top 10 interesting court decisions related to martial law and mobilization in Ukraine. Part 2. Civil and administrative cases (appeal against the summons, deferment from mobilization, challenging the results of the VVK, monetary payments to the military, recovery of compensation from the Russian Federation, dismissal from military service).

And you, in turn, do not forget that the Alibi Law Company will always be able to help you understand the difficult mysteries of military law and defend your legal rights in court!