Between two brigades and without pay: why soldiers return from AWOL but can’t serve
This year, judging by prosecutors’ statistics, the number of criminal proceedings has increased severalfold. At the same time, the military are publicly saying that there are people who have returned and are ready to carry out combat missions, but there is no simple, fast mechanism to assign them to positions and ensure they receive their monetary allowance.
And those soldiers are being awaited in combat brigades fighting on difficult directions, taking losses, and needing reinforcements. Relatives of servicemen are also asking that those who want to fight be given a chance to return to service. A petition to restore the simplified return procedure has been registered on the president’s website. At the same time, members of parliament propose significantly tightening liability for offenses such as AWOL and desertion, while setting certain conditions for those who want to return to service and avoid prison.
Whether those who left their units without authorization can now return to the front, what problems soldiers and commanders willing to take them back are facing, and what needs to be done to regulate these processes in law was examined by a Censor.NET journalist.
THE LAW CAN’T KEEP UP WITH THE WAR
When it comes to AWOL cases, the military cites different reasons that drove people to it. Some ran away out of fear in the moment; some were so traumatized by what they went through in combat or during long stretches on the line that they simply couldn’t handle it psychologically and had no strength left to go on serving; for others, circumstances worked out in a way that forced them into committing the offense.
One such example was cited by MP Yuliia Yatsyk at a meeting of the Verkhovna Rada Committee on Law Enforcement. "The 110th Brigade, the Zaporizhzhia direction. A female medic has been studying remotely in an extramural program for three years. She is not allowed to leave to take her state exams. She goes to finally receive her lawful diploma. The brigade leadership declares her AWOL, submits the paperwork, and the State Bureau of Investigations does not register it as AWOL. Basically, that’s the right call, because after the state exams she returned to her unit," she said, adding that after receiving the SBI refusal, the brigade commander filed a motion with an investigating judge to oblige the SBI to open criminal proceedings. Meanwhile, the girl, realizing she was not being allowed to serve, gets a letter of request to another brigade and has been serving there for two months already. But her former leadership is still pushing for the case to be opened anyway.
In addition, addressing questions to the director of the State Bureau of Investigations, the MP said that "at one of the meetings of the Temporary Investigative Commission (TIC), chaired by Oleksandr Bakumov, the General Staff noted that around 10,000 servicemen return from AWOL. This is how they solve the issue of transfer, which they cannot solve, as you put it, in a non-corrupt way."
Many soldiers used AWOL as a tool specifically to transfer to other brigades during the short period when a simplified procedure for returning to service was in force, which exempted servicemen from criminal liability. However, the law that introduced it did not provide for criminal proceedings to be automatically closed. As a result, even those who managed to return during that de facto amnesty period are still waiting for court decisions.
"Soldiers go AWOL for different reasons. The main one is poor organization of military service within a unit. It can be anything from some idiotic combat tasks to personal conflicts with a commander, as well as social issues — for example, non-payment of monetary allowance or conflicts inside the unit," Serhii Lankin, a lawyer with the Globa&Globa law firm who assists servicemen seeking to return and continue serving, told Censor.NET. "In such situations, a person either leaves deliberately and doesn’t come back because they have no desire to serve at all, or AWOL remains the only way to transfer between units."
About 80% of the requests we get are cases where the guys simply want a proper transfer, but couldn’t arrange it by any other means, so they come to us for legal support after they have already gone AWOL.
The AWOL problem has reached such a scale that, working with brigades, we recommended transferring to units being formed within those brigades and provided legal guidance and support to the guys who were lost, didn’t know where to go, and had no desire to continue serving.
– Until August, a law was in force allowing voluntary return to the army and exemption from punishment. Many people came back. But talking to servicemen and law enforcement officers, I heard that criminal cases can’t be closed automatically even under that law, and it creates problems for them. How are those problems being resolved?
– That’s true. The Criminal Procedure Code does not provide for an AWOL-related criminal case to be closed in any way other than by a court order, both at the pre-trial investigation stage and during the trial on the merits.
During the period you’re talking about, a soldier could be put back on the payroll roster, on the personnel lists, on the food supplies and take up a post in the unit they wanted to transfer to or were returning to. Unfortunately, this period has now ended. Now, a person who comes back cannot do any of that until they are released from criminal liability.
There are cases where a person arrives at the brigade they want to transfer to, but then spends several months in a kind of limbo, forced to wait until the criminal case is closed and they are formally transferred from their previous unit to the new one. Until then, the person may effectively stay at the permanent deployment point (PDP), at headquarters, helping with various tasks, but they are there without pay and are fed purely on a volunteer basis.
– Does this apply to anyone who is under investigation in an AWOL case? Legally, it’s impossible to formally place such soldiers on the books — is that what you’re saying?
– The situation is this. When someone goes AWOL, their unit files a report with the State Bureau of Investigations (SBI), and a criminal case is opened. Then another military unit sends its consent, stating it is ready to take the soldier in. After that, the SBI investigator must initiate a motion in court to close the criminal proceedings. Until the court considers it, the case cannot be closed. So the soldier remains in limbo, because they cannot complete the transfer.
– What is such a soldier’s procedural status? Is a pre-trial measure of restraint applied in cases like this?
– A restraint measure is only possible if the soldier has a suspect status. But roughly 95% of AWOL criminal cases are opened "on the fact" of the offense. That means soldiers, especially those seeking a transfer, are not formally served with a notice of suspicion.
– But the case is about a specific person and their actions.
– Yes, there is a specific criminal proceeding, and we understand that the factual narrative concerns a particular servicemember, but in my practice, there have been only a few cases where soldiers were served with a notice of suspicion. And among those who tried to transfer this way, none had a notice of suspicion. These criminal proceedings are later closed. But until they are closed, the soldier ends up elsewhere. He may be at home or at the headquarters of the brigade he wants to transfer to. Sometimes the Military Law Enforcement Service takes a soldier to a reserve battalion, and he "gets stuck" at a distribution point, from which he can be assigned to any brigade that is being manned.
– How quickly should such criminal proceedings be closed? Are there time limits set by law?
– Working with the military, we see that in brigades that take manning and recruiting seriously, there is communication with the local office of the SBI: they actively exchange documents and stay in touch. And even if this process is not automated, it has at least been streamlined so that the human factor is minimized.
But in practice, under martial law, if no notice of suspicion has been served, the pre-trial investigation time limits are not counted. And a criminal proceeding can "hang" for an unknown period. For example, among our clients there are guys who fought in Mariupol, were taken captive there, and when they came home after three years in captivity, they learned that AWOL-related criminal proceedings had been opened against them. The military unit filed a report, so the person did not receive pay because he was off the unit’s rolls. In other words, a servicemember spent three years in captivity, returns, and realizes there is a criminal case and he has not a penny. Such cases became the reason for creating a working group. We are trying to develop a legal mechanism that would resolve AWOL-related problems and propose it to members of parliament.
AWOL situations like the captivity case happen very often, including because there is no communication between headquarters and the servicemember. For instance, we had clients who were literally a few days late returning from medical treatment, or physically could not reach their unit’s current permanent deployment site (PPD), and during that time the unit managed to file an AWOL report. This is the human factor, and unfortunately there is no real way to prevent it, because such reports are submitted manually. There are no safeguards to monitor whether a person has arrived at the permanent deployment site or not. In other words, everything rests on the unit’s report. In turn, neither the SBI nor the prosecutor’s office provides any assessment of these circumstances at all. For example, in the captivity case we filed a motion to close the proceeding against that servicemember and attached a certificate from the Coordination Headquarters for the Treatment of Prisoners of War, laying everything out clearly with dates. In response, the investigator wrote quite succinctly that this servicemember has no procedural status in the case, no notice of suspicion has been served on him, and that the documents were taken into account and that was it. The person remains off the rolls.
We try to challenge the investigators’ actions in court, but this is the current reality. The SBI is so overloaded with AWOL cases that investigators lack the resources, attention, or perhaps the prioritization to deal with these issues. As of today, these mechanisms are not automated, and everything depends on the investigator.
– During the pre-trial investigation, are the reasons why a person left the unit without authorization established, and are the preceding circumstances examined? What do you see in practice?
– In general, they should be examined. And we have had situations, for example, where a person went AWOL because of a conflict with the command. This is a common phenomenon: due to a conflict with their immediate commander or higher command, people make such decisions. They are given a task, and you understand that with the forces and means available, it is impossible to carry it out. Or there is a minefield, or during combat in the course of an operation soldiers realize they cannot effectively hold a position and withdraw contrary to command orders. These are legitimate reasons and should be investigated. After all, Article 407 of the Criminal Code refers to failure to report for service without valid reasons. But investigators, perhaps because of the sheer number of criminal proceedings and an overall negligent approach to investigating this type of offence, do not look into these issues at all.
We would recommend that soldiers, from the moment they consider going AWOL, especially because of abusive hazing and other non-statutory relations, file reports and inform the command of what is happening. In other words, they should state their position from the very start.
We had a case where the guys went AWOL as an entire platoon. The investigator still does not take this into account, and law enforcement turns a blind eye to that story. There is the fact of failure to report for duty, and that is enough for them.
– If a soldier returns to service in his brigade, must he still be brought to criminal liability?
– Since he returned to service, this is grounds for exemption from criminal liability. But until the criminal proceeding is closed, the person remains off the unit’s rolls.
I asked the military how they are dealing with transfer issues now. They explained using specific examples, but asked that neither their names nor the names of those involved be mentioned. "One of our fellow soldiers, a mortar crewman, tried to transfer to another brigade into a combat position, but he wanted to change his specialty to a UAV operator," says the commander of a UAV battery. "But through ‘Army+’ it didn’t work at first, because during the war he developed serious health problems, was found fit for limited duty, and the system initially wouldn’t approve the transfer. He applied twice, and was refused twice. But when we realized the system was blocking specifically a combat slot, they put him down for a rear-area position and he transferred without any issues."
When asked why he went there at all, he replied that he knew one of the deputy battalion commanders there and wanted to serve specifically with him. Besides, he no longer saw himself in the mortar unit.
My interlocutor calls the human factor the biggest problem with transfers. He says soldiers from other brigades want to move to their UAV operators’ unit, but commanders won’t release them. "When you file a transfer report through ‘Army+,’ they immediately ask you to attach a guarantee letter," he explains. "A recent example: we issued such a letter for a specific soldier who wants to join us, but his brigade command won’t let him go. Even though he is fit for service and is already a UAV operator. He just wants to serve in our team."
So on the one hand, there is an electronic system that is supposed to resolve this issue. On the other hand, the realities on the ground look like this.
Amnesty or tougher penalties?
Andrii Illienko, an officer of the Svoboda battalion within the National Guard’s Rubezh Brigade, also says that these realities should be taken into account.
In a comment to Censor.NET, he recalled that there are public figures on AWOL cases. And although, in his view, they are only approximate because in reality these numbers are hard to calculate given all the nuances, overall, we are talking about hundreds of thousands of people who have left their units. "Why this happened, how to counter it, what to do to reduce it, that’s a very long conversation. I have a lot to say on the matter, but right now it is important to talk first and foremost about the mechanism for bringing these people back into the military," he stressed. "The Verkhovna Rada chose to create a simplified procedure. In effect, it was an amnesty for AWOL cases that lasted until August 30. So this process has already been launched, but if lawmakers do not want to extend it, they must propose another effective solution."
Let’s not fool ourselves: in most cases, no one is really hunting down people who are AWOL. There are not enough resources to do that. They are detained at checkpoints during document checks, or if they commit minor offences. But objectively speaking, there is no mass manhunt for those who went AWOL.
If we go strictly by the letter of the law, it is clear: there is a violation, there is a criminal proceeding, it must be investigated, the soldier must be located and punished. But there is real life as well. And there is a certain category of people and there are many of them: thousands, and in the future tens of thousands who are ready to return under the same scheme that worked earlier. They are ready to come back, join combat units and carry out combat missions. But we cannot take them in because there is no realistic mechanism, not stretched out over months, to do so. What do we propose? That the mechanism works without all these courts, without the bureaucratic law-enforcement system that is buried under hundreds of thousands of cases and cannot even complete formal steps in them. Simply allow combat units, if an AWOL soldier comes to them, to put him back in the ranks quickly and involve him in combat tasks. Then see how the soldier behaves. Lawmakers can add safeguards so that we do not get situations where someone returns for a day and then runs away again. They can set timeframes during which the soldier proves that he will actually serve and carry out combat tasks, and only after that exempt him from criminal liability. Spell out how all of this is to work.
"I understand the legal logic perfectly well and I take the current legislation into account, but let’s be honest: we need to step back a little from this formal logic right now, because we are in a very difficult situation and we need reinforcements. That is the main thing at this moment. If there are people who are ready to fight, who can do it, who have motivation and combat experience, they must return."
He emphasized that he does not justify those who went AWOL, because there is nothing good about it. But he proposes giving them and the brigades that urgently need manpower a chance.
"Who will be better off if such a soldier loses faith completely, sees that no one wants to take him back, goes to ground somewhere for good, and no one will look for him? Will that make anyone better off?
I am proceeding from exactly this logic, common sense and military necessity," he stresses. "Those who have not shown any desire to return to service are incorrigible deserters; there are no questions about them, everything is clear. But there are those who are ready to come back, so let’s bring them back.
We are mobilizing people from prisons, including those convicted under far more serious articles than AWOL, because that is the situation in the country and it is necessary. Let’s give people a chance to fight, and deal with AWOL criminal cases after the war."
Andrii Illienko has recorded several video appeals on the issue and says he has spoken with lawmakers. But will those appeals be heard by the people who can actually change the situation? So far, no public proposals on this have come from the MPs themselves, the Ministry of Defense, or the General Staff.
Let us recall that after the decriminalization period, which, according to the SBI, allowed more than 29,000 servicemembers to return to the military just this year, lawmakers are proposing to toughen penalties again by restoring criminalization. The document also provides that a servicemember may be exempted from criminal liability if he voluntarily returns to his place of service and serves there for at least three months. But this norm applies only to those who committed AWOL before the law enters into force.
It will also make it impossible to transfer freely to another commander or even to another branch of the Defense Forces via going AWOL.
For all new cases of AWOL or desertion committed after the adoption of draft law No. 13260, courts will not be able to apply lenient provisions (a suspended sentence, a shorter term). Instead, they will impose real prison terms (from five years), making punishment unavoidable.
There is also draft law No. 13452 in parliament, on tougher punishment for insubordination. It has not been put to a vote at all yet. But even its appearance has sparked a strong public and military reaction. Censor.NET wrote about this document and about what, in the military’s view, its consequences would be if adopted, including an increase in AWOL cases.
A version of draft law No. 13260 prepared for the second reading is currently not available on the Verkhovna Rada website. Nor are there any other solutions to the problem of returning AWOL soldiers to the military.
Commenting on the situation, MP Oleksandra Ustinova says that the parliamentary Committee on Law Enforcement Activities is waiting for proposals on this issue from the military.
"We’re in a real dead end with AWOL cases," the MP explains. "Because everyone understands that criminal liability has to be brought back. The SBI came in with a report — this year alone we’ve had over 20,000 criminal proceedings. It’s a huge problem."
According to her, the military brought in a draft law on the issue, but lawmakers suggested they first take it into the public arena so society could hear these proposals.
She also said that during the committee meeting, the SBI director proposed granting prosecutors the authority to issue orders to close criminal proceedings in this category when there are lawful grounds. He argued that courts are swamped with AWOL cases and overloaded. Ustinova noted that the SBI chief cited several courts as examples.
"They caught two courts where there were a lot of acquittals. Because if courts on average issue 300–400 verdicts a year, these ones ‘cranked out’ 1,500, all acquittals. They realized there was a cash flow there; criminal proceedings against judges have already been launched. But Sukhachova had this idea that this whole story should be moved from the courts to prosecutors, so prosecutors decide on closing cases. I don’t really like that idea, because we’re just shifting the cash flow from courts to prosecutors. And in local prosecutor’s offices it will be even more in demand than in courts," Ustinova believes.
That the situation needs an immediate solution is obvious, at least to anyone who cares about what is happening on the front right now. And the solution has to be balanced and comprehensive, because the situation is extremely complex: there aren’t lines at enlistment offices like there were in 2022.
"I think in terms of an infantry battalion," one serviceman shared his view with me. "I understand that right now we have dozens of people who are ready to transfer to us from the AWOL category literally tomorrow, and they will fight. Yes, you can assume that some of them may go AWOL again after a while. But most of them will fight. So why not bring these people into the war now? Why are we tightening liability for these fighters instead of tightening it for draft dodgers? Because this sends society a clear signal: dodge it to the bitter end, do anything you want, just don’t let yourself get mobilized into the army."
Tetiana Bodnia, Censor.NET
