IMPERFECTION OF CRIMINAL LAW REGULATION OF LIABILITY FOR UNAUTHORIZED ABANDONMENT OF A MILITARY UNIT: THE PROBLEM OF AN UNDIFFERENTIATED SANCTION

Abstract

The article is devoted to the study of the imperfection of criminal law regulation of liability for unauthorized abandonment of a military unit or place of service under martial law in the context of the undifferentiated nature of the sanction provided for in Article 407 of the Criminal Code of Ukraine. The relevance of the research is determined by the need to ensure fair and proportionate criminal law response to various forms of unauthorized abandonment of a military unit in the conditions of increasing number of such acts and complication of the factual conditions of military service. The paper provides a comprehensive analysis of the normative construction of Article 407 of the Criminal Code of Ukraine, in particular its formalized nature and orientation toward the temporal criterion as the main instrument for distinguishing criminally punishable conduct. The relationship between differentiation of criminal liability and individualization of punishment, as well as the peculiarities of their implementation in law enforcement practice, is examined.

The study establishes that the current sanction of Article 407 of the Criminal Code
of Ukraine has a unified and undifferentiated character, which does not ensure proper consideration of the diversity of factual circumstances surrounding the commission of the act, including conditions of military service, the servicemember’s state of health, psycho-emotional exhaustion, and other objective factors. It is substantiated that under such conditions the function of individualization of punishment is effectively transferred to the sphere of judicial discretion, resulting in variability of criminal law consequences and instability of law enforcement practice. Based on the analysis of court decisions, the limited possibilities for taking individualized factors into account within the framework of the sanction and the dependence of the final outcome on the application of additional legal mechanisms, particularly exemption from criminal liability, are revealed.

Special attention is paid to identifying two models of criminal law response to unauthorized abandonment of a military unit – punitive and compensatory – whose coexistence demonstrates the internal inconsistency of the normative construction and its inability to ensure a fair result without additional corrective mechanisms. It is noted that such a situation creates risks of violating the principles of legal certainty, proportionality, and equality before the law, while simultaneously increasing the dependence of law enforcement on discretionary powers of authorized subjects.

It is concluded that the undifferentiated nature of the sanction provided for in Article 407 of the Criminal Code of Ukraine limits the possibilities for individualization of punishment and does not fully comply with the requirements of justice and legal certainty. The necessity of transition to a differentiated model of criminal law response is substantiated. Such a model should provide for consideration of the causes and conditions of the act, the factual conditions of military service, and the conduct of the person after the commission of the criminal offense, as well as improvement of the sanction structure in order to ensure stability and predictability of law enforcement practice.