Army regulation or betrayal: what newly adopted law on military personnel responsibility entails

On January 25, the President of Ukraine signed the Law on Amendments to several regulatory legal acts regarding military service during martial law or combat circumstances. Since its registration in the parliament, draft law 8271 has caused a flurry of discontent and discussions in society. Some call it "betrayal," others say these are new attempts to regulate the army during a full-scale invasion. Rubryka analyzed the law and whether it can oppress service members in their freedoms.

What is the problem?

Draft Law 8271, with the full title "On Amendments to the Criminal Code of Ukraine, the Code of Ukraine on Administrative Offenses and other legislative acts of Ukraine regarding the specifics of military service under martial law or combat conditions," was registered in the Ukrainian parliament, the Verkhovna Rada, on December 8. On December 13, 270 parliament members voted for it, after which the document was sent to the President for signature.

The draft provided changes to the types and terms of punishment of service members for failure to comply with an order, leaving the place of duty, and refusing to comply with a commander's order. In addition, the draft law prohibited replacing punishment with probation for these violations.

Society reacted quickly — in particular, ordinary military personnel perceived the draft law as a green flag for the command to abuse their duties and strengthen control over soldiers, even in difficult combat circumstances. The military emphasized that battles sometimes entail events when violating the commander's order means saving the life of your own and your comrades. 

On December 15, a request to veto a draft law appeared on the Electronic Petitions website. The petition's author, Tetiana Kostohryzenko, explained that with the help of this law, "the command will gain leverage to blackmail and punish the military with prison for almost any criticism of their decisions, even if the decisions are incompetent and based on unsuccessful combat management." The petition quickly gathered the necessary 25,000 signatures for consideration by the President. As of the moment of adoption of the Law (January 25), the petition was signed by 34,941 citizens, but Volodymyr Zelensky did not consider it.

What is the solution?

The law added a new Article 266-1 to the Code of Administrative Offenses. It gives the leadership the authority to examine conscripts and military personnel of the Ukrainian Armed Forces for alcohol, drug, or other intoxication. It also significantly increases responsibility for administrative offenses, provided for by Articles 172-10 and 172-20 of the Code of Administrative Offenses. Thus, fines and prison terms have now increased. For example, for failure to comply with the order, the soldier can receive 5 to 8 years of imprisonment (earlier, it was from 3 to 7 years).

"The most painful thing is the ban on applying the provisions of Articles 69 and 75 of the Criminal Code of Ukraine for Articles 403 (disobeying an order), 405 (threat or violence against a superior), 407 (voluntarily leaving a military unit), 408 (desertion), 429 (voluntarily leaving the battlefield or refusing to act with a weapon) of the Criminal Code of Ukraine. Article 69 of the Criminal Code of Ukraine provides that if the accused has two or more mitigating circumstances, the court may impose a lighter punishment than provided by law. Article 75 of the Criminal Code of Ukraine provided the possibility of releasing a person from serving a sentence with a probationary period," Yevhen Vorobiov, a lawyer of the Human Rights Platform NGO, emphasizes.

Due to active discussions of the draft law in society, the Commander-in-Chief of the Armed Forces of Ukraine, Valerii Zaluzhnyi, decided to address it and explain its importance in today's circumstances. He says that the army's core is discipline.

"If loopholes in the legislation do not ensure compliance, and 'refusers' can pay a fine of up to ten percent of combat pay or receive a probationary sentence, this is unfair. Moreover — this is key — other service members are forced to cover exposed areas of the frontline, leading to increased losses of troops, territories, and civilians. Often lost positions have to be restored by assault actions at a very high cost. It shouldn't be like that," Valerii Zaluzhnyi wrote in his Telegram channel on December 19.

The Commander-in-Chief remarked that such problems could be solved gently in peacetime, but in war conditions, we need quick and effective solutions. In addition, he emphasized that commanders also bear full legal responsibility for their actions or inaction.

After the Ukrainian MPs supported the draft law, many service members openly criticized this decision. Pavlo Vyshebaba, the commander of the branch of the 68th separate hunting brigade of the Armed Forces of Ukraine, wrote on Twitter that "sometimes it is better to withdraw from the position to protect the personnel, and this was with extenuating circumstances. In the new draft law 8271, extenuating circumstances are not considered."

The former head of the Department of Special Investigations and Maidan Affairs, military officer Serhii Horbatiuk, emphasized that "by adopting draft law 8271, the [Verkhovna] Rada violated the Constitution." He says this is a draft law created by people who do not know the problems of the issue and how law enforcement agencies and courts work.

"For murderers, rapists, thieves, for example, the prohibition of punishing with deprivation of liberty below the lower limit is not established. And they can be released from punishment early. Instead, the Verkhovna Rada, contrary to the Constitution, grossly violates the rights of military personnel only, that is, based on the place of work and uniform. And this is a crime," Serhii Horbatiuk said in an interview for Censor.NET.

Military serviceman Oleksandr Birko wrote on Facebook that he is against the new law, which "makes the powers of the Military Law and Order Service unlimited."

Rubryka asked Yevhen Vorobiov, a Human Rights Platform NGO lawyer, to answer the main questions about Law 8271.

Is it true that the Law allows the command to get "blackmail leverage" and punish the military with prison for almost any criticism of their decisions?

"I cannot fully agree with such a statement, but, of course, in practice, anything is possible. At the same time, I draw attention to Article 41 of the Criminal Code of Ukraine, which states that an order or ordinance is legal if the relevant person gives it correctly and within the limits of their authority and does not contradict the current legislation in terms of the content and is not related to the violation of the constitutional rights and freedoms of a person and a citizen. A person who refuses to comply with a criminally illegal order or demand is not subject to criminal liability.

Let's imagine a situation where troops on the front line are sent to reach the appropriate lines and occupy the proper location. However, the troops are not staffed with people, the correct military equipment, and gear, which is provided for by the military documentation. Such a commander's order can be seen as illegal because it unnecessarily endangers people who do not have the means to conduct an attack."

 Is it true that the military can't be released under extenuating circumstances?

 "It's true. In my opinion, this is a key problem in the adopted Law since there are different circumstances in war, and introducing such a ban for the military, in my opinion, is inappropriate. In addition, there is no corresponding distinction under which circumstances a criminal offense was committed. Being on the battlefield is one thing, and being in the rear is another. Therefore, the military's anger in encroachment by the legislator on Art. 69 of the Criminal Code of Ukraine is fully justified."

Is it true that if a serviceman didn't follow the commander's order (even not in combat circumstances), he wouldn't have the right to be treated more leniently and to be exempted from serving a probationary sentence regardless of the events of the case?

 "Yes, it's true. The legislator, unfortunately, does not distinguish between the place of commission of a criminal offense and blocks the possibility of the court applying the provisions of Article 75 of the Criminal Code of Ukraine, providing for releasing the accused from serving a sentence with probation."

According to Yevhen Vorobiov, the introduced changes are "underdeveloped." The expert believes they did not pass an appropriate expert assessment and may have the opposite effect: dissatisfaction, mistrust, and collective protests of military personnel.

"Besides, only the State Bureau of Investigation (SBI) can investigate criminal offenses related to military service in Ukraine. As we know, there are not so many employees of the SBI. Will they be able to fight crime effectively? The question remains open. Therefore, the state started from the wrong side. In my opinion, communication between commanders and servicemen should be improved to achieve the desired result", says Yevhen Vorobiov.

The lawyer sees no advantages in the new Law at all. To the question of whether the Law can be repealed, Yevhen Vorobiov explains that that can only happen if the Verkhovna Rada votes for other amendments on this issue.