"If we put everyone in jail, there won't be enough cells". What is the fate of soldiers suspected of AWOL

You fought for several months. Then realized that it was "not your thing" and did not return to the unit – AWOL.

You were admitted for treatment. You were preparing for surgery, but were unable to contact the officer – this is also a case of AWOL.

AWOL is an unauthorized absence from a unit. It should not be confused with desertion. The former means that a soldier leaves the unit without permission for a certain period of time; the latter means that he leaves permanently, with the intention of evading service and without intentions of returning.

Each soldier who receives a letter about his or her AWOL has his or her own story and reasons. However, during martial law, the law provides for the In peacetime, the penalties for AWOL vary depending on the duration of the soldier's absence. Uniform penalties are provided for a special period and martial law.same liability: 5 to 10 years in prison.

There are thousands of cases of AWOL. But do all the soldiers who were missing during a roll call really change their battle fatigues for prison uniforms? Let's find out what is usually hushed up.

"Why are you chucking this scrap at me?"

Viktor was 34 when he went to defend his homeland. His mother was suffering from cancer. In the first months of the invasion, her psychological state deteriorated: she cried constantly when she saw news of Russians raping people in the occupation. It also depressed Viktor himself. He said: "Someone has to protect them." He quit his job at a service station and regular sports to volunteer.

Viktor had no experience of military service, but he was promised quality training abroad. But this did not happen: he was taught at a training ground in Ukraine. He says that it was there that he sustained his first injuries when he jumped into a trench incorrectly. He assumes that his ribs were damaged and his ligaments were sprained, but "this wasn't recorded anywhere."

Later, already at the positions, psychological problems came on top of his physical problems: due to his mother's hospitalization, Viktor developed insomnia and could not fall asleep without pills. He requested a family leave.

The soldier with the call sign "Monakh" was granted leave, although he recalls that his weapon was taken away from him as if he were a deserter and taken somewhere without explanation.

While he had some time, he decided to get checked out. So he spent the entire leave in hospital wards. In the lumbar region, doctors saw four hernias, two of which had to be operated on. Viktor recalls: "At night, I had cramps and spasms. I was screaming... I lost a lot of weight."

He was being prepared for surgery. According to Viktor, he was unable to reach his officer, so he contacted his sergeant major and sent him a report from the hospital. In response, he received a message: "Why are you chucking this scrap at me?" A short time later, Viktor received a letter stating that he was in the status of a fighter gone AWOL.

Controversial criminal article on AWOL

The law defines AWOL as the unauthorized leaving of a military unit or place of service by a conscript. The fact of AWOL may be that a soldier has failed to report for duty for three days without good reason, for example, from a work trip, leave, or hospital.

Article 407 of the Criminal Code of Ukraine provides for different penalties for proven cases of AWOL, depending on how long the soldier was absent. But Part 5 is the only one that deals with committing a crime during martial law. The punishment there is from 5 to 10 years in prison.

For comparison, the penalty for evading mobilization (Article 336 of the Criminal Code) is less severe: 3-5 years in prison. Lawyer Tetiana Lebedieva, who has had experience with AWOL cases, considers this a gap in the legislative system and suggests that the article on evasion has not been amended in time, as it still does not mention increased liability if the crime was committed during wartime. However, such changes were made to the article on AWOL in the summer of 2023.

Indeed. "Changes to the article on draft evasion are planned, but the MPs have not yet come to them," Mariana Bezuhla, Deputy Chair of the National Security Committee, told hromadske. The committee is currently busy with amendments to the so-called mobilization law.

Disappeared twice – and then returned to the army

The criminal case against “Monakh” was closed by the investigator due to the absence of corpus delicti, said his lawyer Viktor Bondarenko. After that, the soldier was sent to the The Central Military Medical Commission, which is a military command and control body that supervises the MMCs in the regions and is the governing body for military medical expertise in the Armed Forces of Ukraine.Central Military Medical Commission, where he was found unfit for military service and removed from the military register. When he was discharged, his military unit did not pay Viktor his salary for the entire period of his illegal removal from office, so he and his lawyer will continue to sue over this.

Another proceeding concerning AWOL was opened in early 2024. A 53-year-old soldier named Vasyl was sent to Bakhmut on February 1. A few days later, the family lost contact with Vasyl. The unit told the family that the soldier had allegedly left the position without permission. Later it became known that the man had been in the hospital with a serious injury for 25 days. But doctors could not save him, and the soldier died in the hospital.

Another case of lawyer Lebedieva's regarding AWOL did result in a guilty verdict, although the defendant was not imprisoned. The reason why her client Viktor Hashymov left the unit is unknown to the lawyer, as she received this case when the soldier was already in custody. However, the soldier plea-bargained with prosecutors and received two years of service restriction with a monthly deduction of 20% of his salary in favor of the state for two years. Viktor returned to the army, but was transferred to a different unit – the one he wanted.

"Didn't show up for the formation." Signature, initials

The General Staff is not ready to talk about the number of soldiers who have left their unit or place of service without permission, saying that the information is not for disclosure. But the numbers are growing – this is confirmed, in particular, by data from the National Guard. In 2022, 1% of their soldiers went AWOL, in 2023, it was already 2%.

The increase in the number of cases of AWOL can also be seen in the reports of the Prosecutor General's Office: in 2022, 6,000 such proceedings were registered, and in 2023, 16,000. In the first two months of 2024, law enforcement officers have already started 4,690 proceedings, so the dynamics are telling.

However, only a fraction of these cases result in indictments: 24.9% in the first year of the full-scale war and 13.6% in the second. Last year, prosecutors closed 265 cases of human rights abuses, and 1,912 were brought to court, all with indictments.

There are a lot of soldiers suspected of AWOL, admits Roman Kovalyov, commander of the 413th Separate Rifle Battalion. He explains that if a soldier is not present during a formation or is not seen during some other roll call, they start looking for him.

If the soldier is not found within three hours, the command sends the information to the Military Law Enforcement Service and signs orders to suspend payments. Before reporting to the State Bureau of Investigation, an internal investigation is conducted to check whether there are signs of a criminal offense. Nowadays, according to Commander Kovalyov, this is taken very seriously: almost all AWOL incidents are perceived as crimes.

"Next, the State Bureau of Investigation should open a criminal case. In fact, the first criminal cases came to me only recently – after about 4.5 months since I submitted the documents. That is, everything is very difficult," the commander noted.

"Many cases of unauthorized desertion are closed when the suspects return to serve," says Tetiana Lebedieva. In general, according to the lawyer, not many cases have resulted in actual sentences: active consideration of proceedings under this article began only in mid-2022. Lebedieva says that there are not enough cells to send everyone to prison.

It is a common practice for soldiers to eventually return to service after going AWOL. Battalion commander Roman Kovalyov says they are reinstated in their positions and receive their pay back. However, if a soldier has already been indicted by the State Bureau of Investigation, investigators will "simultaneously deal with him" while he continues to serve.

It is not the military unit from which they left that helps soldiers to be reinstated, but a lawyer and investigators with prosecutors, says Bondarenko. He explains that the investigator's task is to complete the pre-trial investigation and bring the case to court as soon as possible, while the prosecutor's task is to bring it to a guilty verdict. Otherwise, it would mean that the person was illegally prosecuted.

"The prosecutor wants to consider such a case as soon as possible, because there are a lot of cases of AWOL... Therefore, the prosecutor often offers to plea-bargain if the circumstances allow it. And the soldier then decides whether to accept the penalty proposed by the prosecutor," the lawyer noted.

The position of the Prosecutor General's Office on this issue was not provided. In an inquiry, hromadske asked how prosecutors usually deal with cases of AWOL: do they imprison soldiers or try to return them to the army. The PGO answered that they do not keep records of such data and will not disclose the content of plea bargains signed by suspected combatants.

Missing your family? No, afraid of death

"Things don't always turn out the way you think or want them to. There is also a third party – health. Health is unpredictable," says “Monakh”, who was declared unfit by a psychiatrist at the military medical commission.

Tetiana Lebedieva emphasizes that there is a reason why soldiers go AWOL from their units: "I have not seen a single soldier who said: ‘I just want to be with my wife’ or ‘I miss my children’," the lawyer says. "Each of them has their own health problems.”

The lawyers agree that the current legislation in the article on unauthorized abandonment of a unit needs to be changed. It should start with a legislative clarification of what exactly is considered to be AWOL because there are inconsistencies. Also, the length of service of the suspect should be taken into account when determining responsibility for going AWOL.

"Nowadays, those who have been serving for two years are going AWOL, some have been serving since 2014. Their psyche simply cannot stand it. Therefore, it is impossible to lump together those who have served for a month and committed AWOL and those who have been serving for years. I think we need to make some kind of scale to determine what kind of responsibility should be imposed on whom," said lawyer Tetiana Lebedieva.

The penalty of 5-10 years in prison is too severe, says lawyer Viktor Bondarenko. He says that law enforcement officers are not trying to put all people behind bars, but rather to get plea bargains where possible and reinstate soldiers so they can continue to serve.

"If all the military accused of war crimes are now placed in jail, it will lead to even worse consequences – loss of motivation and a sense of injustice. In addition, they will still need to be housed and fed all this time, and they will not be defending the state. Who will benefit from this? The state will definitely not benefit," the lawyer believes.

Everyone who went AWOL has their own story: some don't get along with their commander, while others fear for their lives during a dangerous mission.

"Military psychologists say that it's normal for soldiers to be afraid," says Tetiana Lebedieva. "So we need to talk about it and work with it, not put people in jail for real terms.”