AWOL is a continuing offense: The Supreme Court explained which law applies when the Criminal Code of Ukraine changes

The criminal offense under Article 407 of the Criminal Code is continuing, as it begins from the moment of unauthorized leaving of a military unit or place of service or failure to appear on time without valid reasons for service, and continues uninterrupted until the moment it ends. In case of a change during the period of unauthorized absence from the military unit, the criminal law applied is the law on criminal liability that was in force at the time of its termination.

Circumstances of the case

The accused, while serving in the Armed Forces of Ukraine under mobilization, without intending to permanently evade military service, left the military unit without permission from the relevant commander (chief) on 17.09.2022 and was absent from service without valid reasons until 07.12.2023, failing to perform official duties under martial law conditions.

Positions of the courts of first and appellate instances

The local court, based on article 75 of the Criminal Code, released the accused from serving the sentence with probation.

The appellate court annulled the local court's verdict regarding the imposed punishment and sentenced the accused applying Article 69 of the Criminal Code.

In the cassation appeal, the prosecutor argued that the appellate court mistakenly concluded that the criminal offense under part 5 of Article 407 of the Criminal Code is not continuing and was committed before the entry into force of the Law of Ukraine No. 2839-IX dated 13.12.2022, according to which from 27.01.2023 the application of Articles 69 and 75 of the Criminal Code to persons who committed the offense under Article 407 of the Criminal Code is excluded.

Position of the Criminal Cassation Court of the Supreme Court

The appellate court's verdict was annulled and a new hearing was assigned in the appellate court.

The reasoning of the Criminal Cassation Court: the panel of judges indicated that the composition of the criminal offense under Article 407 of the Criminal Code "Unauthorized leaving of a military unit or place of service" is continuing, as it begins from the moment of unauthorized leaving of the military unit or place of service or failure to appear on time without valid reasons for service, and continues uninterrupted for a certain period until its termination. In the case of a continuing criminal offense, a person commits an act or omission once and then continuously remains in a criminal state. Throughout this period, their conduct constitutes a completed criminal offense. The continuing criminal offense is considered completed from the moment of its termination.

Therefore, the conclusions of the lower courts that the criminal offense under part 5 of Article 407 of the Criminal Code is not continuing are incorrect.

In the case of a continuing criminal offense, the law on criminal liability that was in force at the time of its termination applies, and retroactive application of the criminal liability law in time does not apply.

Thus, the accused left the place of service without permission on 17.09.2022 and only on 07.12.2023 voluntarily arrived at the territorial office of the State Bureau of Investigation, thereby effectively terminating the commission of the criminal offense. Therefore, the accused continued to commit the criminal offense by remaining outside the place of military service until 07.12.2023, i.e., during the period of the Law of Ukraine No. 2839-IX, according to which from 27.01.2023 the application of Articles 69 and 75 of the Criminal Code to persons who committed the offense under Article 407 of the Criminal Code under martial law or combat conditions was excluded.

Accordingly, imposing a punishment on the accused under part 5 of Article 407 of the Criminal Code below the minimum limit established in the sanction of the article of the Special Part of this Code (Article 69 of the Criminal Code), as done by the appellate court, or applying the institution of release from serving the sentence with probation (Article 75 of the Criminal Code), as done by the local court and requested by the defense in the cassation appeal, is impossible.

The decision of the panel of judges of the First Judicial Chamber of the Criminal Cassation Court of the Supreme Court dated 28.04.2026 in case No. 159/140/24 (proceeding No. 51-4657km25) can be found at this link.

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