Features of Establishing Circumstances Subject to Proof in Criminal Proceedings When Investigating Military Offences

Abstract

The article is devoted to the peculiarities of establishing circumstances subject to proof in criminal proceedings when investigating military offences and examining the peculiarities of pre-trial investigation of military criminal offences in the context of armed aggression against Ukraine, in particular, unauthorised absence from a military unit or place of service and desertion. Attention is focused on the increase in the number of such offences in connection with the increase in personnel, the high intensity of combat operations and the psychological stress on military personnel. The legal nature of military crimes and their social danger, which manifests itself in an encroachment on the state's defence capability and military order, is revealed.

The key circumstances to be established during the investigation of war crimes are analysed: type of service, unauthorised nature of leaving the unit, presence or absence of valid reasons for not reporting for duty, motive and purpose of the act, duration of absence, intent to evade service. Particular attention is paid to the distinction between short-term absence from duty and desertion as a crime with persistent intent. The importance of the testimony of fellow servicemen, analysis of military records and disciplinary materials is emphasised.

The competence of the State Bureau of Investigations and new wartime legislation regarding the determination of jurisdiction are disclosed. The requirements of the European Court of Human Rights regarding the protection of the rights of military personnel even in wartime, in particular the prohibition of torture, violation of the right to life and the right to a fair trial, are highlighted. The need for specialised knowledge and coordinated cooperation between law enforcement agencies and military structures is outlined, and the key features of evidence in criminal proceedings concerning military offences are revealed.

The complexity of establishing the circle of witnesses and eyewitnesses, clarifying the motives and objectives of unlawful actions, as well as investigating the manner of their commission and the means of their use, and the need to use expert knowledge in the fields of military service, criminal procedure, criminalistics and forensic examination are emphasised. In particular, the importance of cooperation between the National Police and the military command is highlighted.