Greetings. As a lawyer with 15 years of experience, I have analyzed the Supreme Court decision you provided. Here is a detailed breakdown:
1. **Subject of the Dispute:** Cassation review of the conviction of a military serviceman accused of unauthorized absence from a military unit (Part 5, Article 407 of the Criminal Code) and insubordination (Part 4, Article 402 of the Criminal Code), seeking exemption from criminal liability for the first episode and mitigation of punishment for the second.
2. **Arguments of the Court:**
– The Court applied the provisions of Part 5, Article 401 of the Criminal Code (as amended by Law No. 3902-IX), which allows for the exemption from liability of military personnel who have committed desertion or AWOL for the first time, provided they have voluntarily returned to service with the commander’s consent.
– The Supreme Court acknowledged that the commander’s order to place the convicted person on supply records upon return to the unit serves as sufficient evidence of “written consent” to continue service, even in the absence of a separate petition.
– Taking into account the retroactive effect of a law that improves the position of an individual, the Court closed the proceedings under Part 5, Article 407 of the Criminal Code, as the convicted person had effectively returned to the performance of duties.
– Regarding insubordination (Part 4, Article 402 of the Criminal Code), the Court deemed actual imprisonment excessive, taking into account the convicted person’s combat experience, severe injury sustained, and positive character references following the commission of the crime.
– The Court emphasized that the principles of justice and the rule of law require the individualization of punishment; therefore, actual service of the sentence was replaced with a probationary period (Article 75 of the Criminal Code).
– The Court explicitly stated that it is departing from previous practice, expanding the interpretation of the conditions for exemption from liability under Article 401 of the Criminal Code, particularly regarding the form of the commander’s consent and the lack of necessity for a formal petition if the fact of return to service is confirmed by orders.
3. **Court Ruling:** The Supreme Court set aside the previous decisions in the part concerning the conviction under Part 5, Article 407 of the Criminal Code, closing the proceedings, and amended the judgment in the part concerning the conviction under Part 4, Article 402 of the Criminal Code, exempting the convicted person from serving the sentence with a probation period (probation period of 1 year).
