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15 December, 2022
Lacking fair trial and rights protection: NAKO analysed draft law No. 8271

On December 13, 2022, the Verkhovna Rada of Ukraine passed draft law No. 8271. It is aimed at increasing penalties for service members in the context of martial law. Currently, the law is submitted to the President for signature, and the public is already calling for a veto

The NAKO team has analysed this law. We warn that, given the mobilisation of hundreds of thousands of citizens into the ranks of the Armed Forces of Ukraine, this can result in significant negative consequences for persons who are not ranking military personnel, as well as narrow their right to a fair trial and proper remedies. 

A detailed NAKO analysis is available at a link. Below is a brief overview of the risks entailed by the passage of this law.

Firstly, the law makes it impossible to mitigate punishment for the following criminal offences:

  • Failure to follow the commander's order;
  • Threat or violence against the commander;
  • Absence without leave at a military unit or duty area;
  • Abandonment of post;
  • Unauthorised leave of the battlefield or refusal to resort to arms.

A similar prohibition was set regarding releasing a service member from a probationary sentence.

Within the context of martial law and, in particular, a combat environment, such increased liability is excessive. After all, the level of social danger of each criminal offence committed may be different. Therefore, it may require an individual approach by the court when deciding the case given circumstances mitigating the punishment.

Secondly, the law sets the minimum punishment for failure to follow the order as five years of imprisonment, thus classifying it as a “major”, not a “minor” crime.

Indeed, such a change could potentially contribute to increasing military personnel discipline. However, it also carries significant risks of violation of rights.