ПОНЯТТЯ ВОЄННИЙ СТАН ТА БОЙОВА ОБСТАНОВКА ЯК КВАЛІФІКУЮЧІ ОЗНАКИ СКЛАДУ ЗЛОЧИНУ ДЕЗЕРТИРСТВО: ЗНАЧЕННЯ ДЛЯ КРИМІНАЛЬНОЇ ВІДПОВІДАЛЬНОСТІ

Abstract

This research paper is devoted to the study of the qualifying features of the criminal offence of desertion under Part 4 of Article 408 of the Criminal Code of Ukraine, namely, desertion under martial law or in a combat situation. The author analyses these concepts by means of doctrinal and legislative interpretation for the purpose of correct understanding of these features in the context of law enforcement practice, and also with a view to preventing judicial discretion in criminal proceedings. The author analyses the relevant relevance of studying these features for the correct qualification and sentencing for the crime of desertion through the prism of modern challenges.

Understanding martial law and combat situations is essential for establishing the legal framework within which the offense of desertion is defined. The presence of these conditions may affect the elements required to prove desertion, such as the existence of a lawful order and the intention to remain absent. Martial law and combat situations represent critical times in military operations where discipline and order are of utmost importance. Desertion during such periods can have severe consequences for unit cohesion, mission success, and the safety of military personnel. 

The author also notes that the key problem remains the correct correlation of the concepts of «martial law» and «special period», since the legislator in the relevant legal acts under consideration seems to equate the legislative meaning of these legal concepts. It is established that only through the correct interpretation of legislative provisions, criminal proceedings will operate in accordance with their principles and tasks provided for by the Criminal Procedure Code of Ukraine (CPC of Ukraine) and, in the context of sentencing, will contribute to the correct determination of criminal liability.