PROBLEMS OF THE QUALIFICATION OF CERTAIN MILITARY ADMINISTRATIVE OFFENSES UNDER THE CONDITIONS OF THE STATE OF MARTIAL (IN THE EXAMPLE OF OFFENSES PROVIDED FOR BY ARTICLE 172-10 OF THE CODE OF UKRAINE ON ADMINISTRATIVE OFFENSES)

Abstract

This article is devoted to the definition of qualification problems and the justification of the correct position regarding the legal assessment of the objective side of such a type of military administrative offense as refusal to comply with the lawful requirements of the commander (chief). The research is based on the results of the author’s analysis of court decisions on consideration and revision of cases on administrative offenses, provided for in Art.172-10 of the Code of Ukraine on administrative offenses, as well as criminal proceedings under articles 402 and 403 of the Criminal Code of Ukraine. Attention is drawn to the similarity of the content of the objective side of this type of military administrative and criminal offenses, which causes certain problems in judicial practice in the conditions of martial law. Based on the results of the study, the following conclusions were formulated: firstly, when registering the detected misdemeanors, the plot in the administrative offense protocol must necessarily contain a description of the specific requirement of the commander (chief), which the serviceman refused to fulfill or did not actually fulfill; secondly, the materials in the case must contain evidence that such a demand was legal and was presented to the serviceman in an understandable form and manner; thirdly, failure to perform actions that should have been performed in accordance with the commander’s (chief’s) requirement, even in the absence of the military serviceman’s expressed reluctance to perform them, constitutes actual refusal; fourthly, if there is sufficient evidence to believe that the military serviceman’s actions led to or created a real risk of serious consequences due to his refusal to comply (actual failure without valid reasons) to comply with the lawful requirement of the commander (chief) – such actions should be qualified according to the relevant norm (Articles 402, 403) of the Criminal Code of Ukraine (it should be emphasized that in the conditions of martial law, any refusal to perform a combat mission causes risks of serious consequences); fifth, if there are signs of open refusal of a serviceman to comply with the legal requirements (orders) of the commander (chief), such actions should be qualified under Art. 402 of the Criminal Code of Ukraine. In addition, it is proposed to amend the wording of Article 172-10 of the Code of Administrative Offenses.