Here is the detailed analysis of the court decision prepared for you:
1. The subject of the dispute is the legality of convicting a serviceman for unauthorized departure from a military unit (Part 5 of Article 407 of the Criminal Code of Ukraine) and the possibility of his release from criminal liability based on new legislative amendments allowing for reinstatement to service.
2. In rendering its decision, the Court was guided by the fact that after the commission of the offense, the legislation was amended (Law No. 3902-IX), which allows for the release from liability of servicemen who have committed an unauthorized departure from a military unit for the first time, provided they return to service and obtain the commander’s consent. The Supreme Court established that although there was no formal motion for release at the investigation stage, the convicted person’s actual return to the military unit and the commander’s order for enlistment are sufficient confirmation of voluntary intent and the consent of the command. The Court also emphasized the principle of the presumption of innocence, noting that it cannot take into account other episodes of unauthorized departure for which there is no guilty verdict; therefore, the offense is considered to have been committed for the first time. An important argument was the application of the retroactive effect of the law in time, as the new norms improve the person’s position. The Court also stressed that the person’s current status in active service is not a mandatory condition for applying the release mechanism, provided that the substantive legal grounds are met. The Court in this case departed from its previous position, which required the presence of a clearly formalized motion for release at the pre-trial investigation stage, recognizing the actual return to the military unit and the relevant orders of the commander as sufficient.
3. The Supreme Court overturned the judgment of the court of first instance and the ruling of the appellate court, released PERSON_7 from criminal liability on the basis of Part 5 of Article 401 of the Criminal Code of Ukraine, closed the criminal proceedings, and ordered his immediate release from custody.
