Volume 12 - Issue 63
/ March 2023
243
http:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2023.63.03.23
How to Cite:
Petkov, S., Barikova, A., Kopotun, I., Bulhakova, O., & Gubariev, S. (2023). The mechanism for the prevention of military
administrative offences under martial law. Amazonia Investiga, 12(63), 243-253. https://doi.org/10.34069/AI/2023.63.03.23
The mechanism for the prevention of military administrative offences
under martial law
Механізм запобігання військовим адміністративним правопорушенням в умовах
воєнного стану
Received: March 15, 2023 Accepted: April 18, 2023
Written by:
Sergey Petkov1
https://orcid.org/0000-0003-4160-767X
Anna Barikova2
https://orcid.org/0000-0002-9707-0106
Igor Kopotun3
https://orcid.org/0000-0002-2947-8599
Olena Bulhakova4
https://orcid.org/0000-0002-0893-3732
Sergii Gubariev5
https://orcid.org/0000-0003-0340-8514
Abstract
Observance of military discipline under martial
law is one of the pre-conditions for making the
country’s defence and ensuring national security
as a whole more effective. That is why the
current legislation in the field of military
administrative offences needs to be revised and
brought into line with the requirements imposed
by the wartime. The aim of the study is to analyse
the current state and promising directions for
improving the mechanism for the prevention of
military administrative offences under martial
law. The methods of analysis of the legislative
framework, formal logic, case studies,
comparative law were used in the course of the
research. The article was built using international
experience. The study found a number of
contradictions in the changes introduced in the
legislation on military administrative offences
after the beginning of a large-scale military
invasion. Such changes as increased punishment
and no right to commutation, etc. intended to
improve discipline can have the opposite effect,
1
Doctor of Legal Sciences, Professor at the Department of Public and Private Law, V.I. Vernadsky Taurida National University, Kyiv,
Ukraine.
2
PhD in Law, Educator of the Department of Public Management and Administration, National Academy of Internal Affairs, Kyiv,
Ukraine.
3
Doctor of Legal Sciences, Professor, Chief researcher of the research laboratory on problems of prevention of criminal offences,
Donetsk State University of Internal Affairs, Kropyvnytskyi, Ukraine.
4
PhD in Economics, Associate Professor, Head of the Department of State and Legal Disciplines, Donetsk State University of internal
affairs, Kryvyi Rih, Ukraine.
5
PhD in Law, Associate Professor, Head of the Department of Private and Public Law, V.I. Vernadsky Taurida National University,
Kyiv, Ukraine.
244
www.amazoniainvestiga.info ISSN 2322- 6307
reducing the motivation and confidence of
servicemen. Special attention should be paid to
entitling one person to draw up a report on an
administrative military offence and collect
evidence — most often, battalion commanders,
which makes servicemen vulnerable to the
commanders, whatever decision they make, and
also increases corruption risks. Therefore, further
research should focus on the development of
directions for amending Article 172-13 “Abuse
of power or official position by a military
official”.
Keywords: military administrative offences,
martial law, discipline, corruption,
responsibility.
Introduction
The martial law introduced on February 24, 2022
in Ukraine changes the usual realities in all
spheres of life of Ukrainians. The legal sphere
was one of the first to introduce changes, because
the lawmakers faced an objective need to change
the legislation in accordance with the
requirements imposed by the wartime. Issues of
providing national security and defence, which
depend not least on the appropriate military
discipline, took priority (Chow & Yeh, 2021;
Simmons, 2021).
Since 2014, the number of military
administrative offences has increased
significantly. The analysis of aspects of military
discipline in 2020-2021 indicates the highest
frequency of violations of the rules banning the
consumption of alcoholic beverages by
servicemen. Besides, frequent cases of arbitrary
abandonment of military units and negligent
treatment of military service were also observed
(Ostapenko, 2021). Since the beginning of the
full-scale invasion, the courts of the first instance
have made more than 30,000 decisions in cases
of bringing to administrative responsibility under
Part 3 of Art. 172-20 of the Code of Ukraine on
Administrative Offences only as of mid-
December of the same year (Durnopianova,
2022). Therefore, the research into the directions
for improving the mechanism for the prevention
of military administrative offences under martial
law is an urgent issue.
The aim of the study was to analyse the current
state and promising directions for improvement
of the mechanism for the prevention of military
administrative offences under martial law. The
aim involved the fulfilment of a number of
research objectives, in particular:
− Analyse the innovations in the legislative
framework regulating military
administrative offences related to the
introduction of martial law, in particular,
aspects of the legality of increasing the
responsibility of servicemen introduced by
the Law of Ukraine “On Amendments to the
Code of Ukraine on Administrative
Offences, the Criminal Code of Ukraine and
Other Legislative Acts of Ukraine
Regarding the Peculiarities of Military
Service under Martial Law or in a Combat
Situation” (Verkhovna Rada of Ukraine,
2022; Kopotun, 2023);
− Conduct a case study on determining the
effectiveness of Law No. 8271 by
comparing real examples from the life of
servicemen testifying both in favour of the
adoption of the Law and against it;
− Outline the directions for improvement of
the mechanism for the prevention of military
administrative offences under martial law
based on the results obtained during the
analysis of the legislative framework and
international experience.
The research objectives set in the article imply
the following main research questions:
Petkov, S., Barikova, A., Kopotun, I., Bulhakova, O., Gubariev, S. / Volume 12 - Issue 63: 243-253 / March, 2023
Volume 12 - Issue 63
/ March 2023
245
http:// www.amazoniainvestiga.info ISSN 2322- 6307
− What are the main innovations in the
legislative framework related to military
administrative offences?
− What advantages and disadvantages can be
noted in Law No. 8271 when applied to real
situations?
− What are the directions for improving the
mechanism for preventing military
administrative offences under martial law?
− What aspects of international experience
should be adapted to Ukrainian practice in
order to improve the mechanism for
preventing military administrative offences
under martial law?
Literature Review
In most studies on military administrative
offences the leading specialists in law focus on a
number of existing shortcomings in the
legislation. This is especially relevant in the
context of martial law, because ensuring national
security depends on a balanced approach to law-
making during wartime. The adoption of the Law
of Ukraine “On Amendments to the Code of
Ukraine on Administrative Offences, the
Criminal Code of Ukraine and Other Legislative
Acts of Ukraine Regarding the Peculiarities of
Military Service under Martial Law or in a
Combat Situation” (hereinafter referred to as
Law No. 8271), which increases responsibility of
servicemen for committing offences, caused a
great wave of criticism. Most researchers note
that the adoption of this law will not contribute to
the improvement of discipline, but will only limit
the rights of servicemen (Verkhovna Rada of
Ukraine, 2022; Pietkov, 2020).
Bobrovska (2023) harshly criticizes the adoption
of the Law — from the procedural violations to
the inflated punishment for servicemen without
the right of commutation. In their article,
Opryshchenko (2023) and Nekrasov (2023) refer
to the opinions of experts who consider the
adoption of the specified law illegal, in particular
in view of the insecurity of servicemen compared
to the command.
Pavlovska (2022) deals with the content and
structure of administrative offences under martial
law. The researcher focuses on the consideration
of Chapter 13-B of the Code of Ukraine on
Administrative Offences. She identifies the
shortcomings of the current legislation, the main
of which is the violation of the principle of
separation of powers. Merdova (2022) considers
the commission of an administrative offence
under martial law as a circumstance that
aggravates responsibility for such an offence.
Some works are focused on an in-depth analysis
of some articles of Chapter 13-B of the Criminal
Procedure Code. Ostapenko (2021) examines
gaps in the legislative framework regarding
military administrative offences, in particular,
inaccuracies in Article 172-15 of the Code of
Ukraine on Administrative Offences “Negligent
treatment of military service.” Ivashkovskyi
(2021) focuses on Article 172-11 “Arbitrary
abandonment of a military unit or place of
service”.
Podoliaka & Domin (2020) examine the drafting
of protocols on military administrative offences
by military prosecutors. The researchers
described this procedure in detail, defining the
specifics and powers of military prosecutors.
Fesenko et al., (2022) revealed the aspects of
legal responsibility for military offences. The
researchers noted the objective need to revise the
existing legislation in the military sphere because
of the increased number of war crimes after 2014,
and to develop an effective mechanism for
combating crime in the military sphere.
Riabenko and Zoria (2019) are among the
researchers who consider corruption-related
administrative offences. They also cover the
activities of the military prosecutor’s office in
combating such offences.
A number of foreign authors studied such areas
of combating war crimes as the use of a cascade
strategy, and the development of interaction
between the community and law enforcement
agencies (McGarrell, 2020), the ratification of
international treaties and conventions
(Beigbeder, 2018), strengthening the national
and international legal framework (Bothe et al.,
2013), the introduction of appropriate
programmes in education and training
(Weissbrodt & De La Vega, 2007), the
application of an early warning and response
system (Stahn, 2008), support and peace building
(De Greiff, 2014).
Methods and Materials
Research design
Outlining the directions for improvement of the
mechanism for the prevention of military
administrative offences under martial law
requires the division of research into stages. In
particular, it is necessary to examine the
legislative framework regarding administrative
military offences before the introduction of
changes caused by the introduction of martial
246
www.amazoniainvestiga.info ISSN 2322- 6307
law, as well as after the introduction of changes.
It is appropriate to consider the effects of making
such changes in practice and, ultimately, to
outline the directions for improving the
mechanism for the prevention of military
administrative offences under martial law based
on the results of the analysis.
So, the first stage of the research provided for the
analysis of the legislative framework, in
particular, Chapter 13-B of the Code of Ukraine
on Administrative Offences. The method of
comparative law was used to determine the
changes that occurred in relation to this Chapter
after the adoption of Law of Ukraine No. 8271
“On Amendments to the Code of Ukraine on
Administrative Offences, the Criminal Code of
Ukraine and Other Legislative Acts of Ukraine
Regarding the Peculiarities of Military Service
under Martial Law or in a Combat Situation.” In
particular, the level of responsibility for
servicemen for committing military
administrative offences before and after the
adoption of Law of Ukraine No. 8271 was
compared (Verkhovna Rada of Ukraine, 2023;
Kopotun, 2023).
The second stage of the research provided for the
analysis of two examples using the case study
method. The first of the mentioned examples
testifies in favour of the adoption of Law No.
8271 (the information is taken from a journalistic
investigation (Steshenko, 2022). The second
example testifies against the adoption of the
specified law (the data used are taken from a
journalistic investigation (Opryshchenko, 2023).
The case study method was used to assess the
actual advantages and disadvantages of the
adopted Law without assumptions and theory,
and further helps to identify directions for its
improvement.
The third stage provided for outlining the
directions for the improvement of the mechanism
for the prevention of military administrative
offences under martial law based on the results of
the analysis conducted during the study. The
method of formal logic was used to propose a
number of improvements related to the
legislative provision of proceedings in cases of
administrative offences, the procedure for the
examination of the state of alcohol, drug, etc.
types of intoxication, reduction of corruption,
etc.
The fourth stage of the study involved
identification of a number of provisions in the
legislation of the USA and the EU using the
method of comparative law, which can be
adapted and used in Ukrainian practice to
increase efficiency of prevention of military
administrative offences.
Information background
The information background of the study is
academic periodicals of Ukraine, journalistic
investigations, as well as separate documents of
the legislative framework of Ukraine, in
particular the Criminal Code of Ukraine, as well
as Law of Ukraine No. 8271 “On Amendments
to the Code of Ukraine on Administrative
Offences, the Criminal Code of Ukraine and
Other Legislative Acts of Ukraine Regarding the
Peculiarities of Military Service under Martial
Law or in a Combat Situation”.
Results
Increasing responsibility for military
administrative offences
What are the main innovations in the legislative
framework related to military administrative
offences?
Martial law is a special regime introduced in the
country in the event of a threat to national
security or territorial integrity. During martial
law, special regulations are introduced, which
provide for an increased level of discipline and
order of military personnel. In such conditions, a
special system of military administration and
justice operates, which provides for proceedings
in cases of military administrative offenses.
Martial law is a special regime introduced in the
country in the event of a threat to national
security or territorial integrity. Special
regulations, which provide for an increased
discipline and order of servicemen, are
introduced during martial law. A special system
of military administration and justice applies in
these conditions, which provides for proceedings
in cases of military administrative offences.
A military offence is an offence committed by a
serviceman (a person on a military service) and
entails administrative responsibility provided in
Chapter 13-B of the Code of Ukraine on
Administrative Offences. A study of the changes
proposed for the introduction to Chapter 13-B of
the Administrative Code of Administrative
Offences after the adoption of Law No. 8271
gives grounds to conclude that responsibility for
military administrative offences was increased
under all articles of the said Chapter (Verkhovna
Rada of Ukraine, 2023a). Moreover, an article on
Volume 12 - Issue 63
/ March 2023
247
http:// www.amazoniainvestiga.info ISSN 2322- 6307
the examination of servicemen for the condition
of alcohol, drug, and other types of intoxication
that can be carried out forcibly was added. In
addition to increasing responsibility for military
administrative offences, Law No. 8271 provides
for amendments to the Criminal Code of
Ukraine. Under martial law, judges were also
forbidden to mitigate the punishment for certain
war crimes, as well as to change the punishment
for them.
It should be noted that even before its signing,
Law No. 8271 caused a wave of discontent and
resulted in a petition to veto this law, which
gathered the necessary number of signatures for
consideration by the President (Office of the
President of Ukraine, 2022). Despite this, Law
No. 8271 was signed by the President.
Increasing responsibility for military offences
during martial law is, on the one hand, justified,
given the need to ensure national security, which
depends not least on compliance with established
rules and discipline. However, numerous critics
of Law No. 8271 from among leading lawyers
and other specialists encourage us to consider an
alternative point of view.
Case studies on determining the effectiveness of
Law No. 8271
What advantages and disadvantages can be noted
in Law No. 8271 when applied to real situations?
The case study presents two cases, in one of
which the result of the application of Law No.
8271 can be defined as unjustified and unlawful.
In the second case, the adopted Law could be
beneficial for the situation (at the time of the
event, the law had not yet been adopted).
Case 1. Against the adoption of Law No. 8271
The unlawfulness of Law No. 8271 can be
demonstrated by using the example of 57-year-
old M. Voroniak, a veteran of the Anti-Terrorist
Operation (ATO) and military operations in
Angola. In April 2022, the man’s health
deteriorated significantly (he could not walk,
fainted). A diagnosis of Type II diabetes could
lead to gangrene or amputation.
While being treated, the serviceman was
transferred to the 102nd separate brigade of the
Territorial Defence Forces. Sending him to the
combat zone had to be preceded by the Military
Medical Board. The hospital informed that the
man should be treated at a new place of service.
Later, he arrived to the 102nd separate brigade of
the Territorial Defence Forces, but he was never
sent for treatment and Military Medical Board,
which is why no records of his state of health
were made in the military file. While the man was
waiting for the Military Medical Board, he was
given an order to go to the front, in response to
which he submitted a report that he could not
fulfil such an order because of his health.
Subsequently, the man was suspected under
Article 172-10 of refusing to fulfil the
command’s order. During the investigation, the
aforementioned law was adopted, and the
administrative case turned into a criminal one.
The aforementioned Law was adopted during the
investigation, and the administrative case turned
into a criminal one.
After the start of the investigation, M. Voroniak
was referred to the Military Medical Board,
which determined him to be “limitedly fit”, so the
case opened against the serviceman was
legitimized.
Later, the man, having not received a referral for
treatment, treated diabetes himself, and his
condition improved. He was ordered to go to the
war zone, which he fulfilled, but repeated health
deterioration led to hospitalization and
amputation of his toes.
The criminal case against the man was not
closed, and he faces 5-8 years in prison
(Opryshchenko, 2023).
Case 2. For the adoption of Law No. 8271
The example of war veteran M. Dvorianchuk
testifies in favour of the adoption of Law
No. 8271. The man describes an event related to
his arbitrary abandonment of the battlefield. He
and two other servicemen arrived at the
emplacement near Mostyshche, which turned out
to be empty. When the servicemen called and
searched for those who were supposed to be in
the emplacement, they did not know that there
was already a Russian landing party on the street
nearby.
Dvorianchuk M. describes another example
related to arbitrary abandonment of the
emplacement. The servicemen mistakenly
decided that Russian tanks were advancing on
them, and fled from their emplacement. The
fugitives had to be searched for and handed over
to the brigade commander, who returned them to
their emplacements. At the same time, they were
not punished, but several hundred square
248
www.amazoniainvestiga.info ISSN 2322- 6307
kilometres were captured by the enemy
(Steshenko, 2022).
The considered examples cover only a small part
of the problems (advantages) associated with the
adoption of Law No. 8271. However, they prove
that the existing situation on the front both before
and after the adoption of the Law requires a
balanced approach to its improvement. In the
first example, the problem lies not only in the
adoption of the said Law, but also in non-
observance of valid legal norms by the
command. In the second example with M.
Dvorianchuk, the man notes that the adoption of
the above-mentioned law entails increased
responsibility depending on the command
(Steshenko, 2022). It follows that the
effectiveness of this law depends not least on the
good faith of the command. Such a conclusion
contradicts the essence of the legal system as a
whole, which should be based on the principles
of equal treatment and fair punishment for all its
subjects.
Directions for improving the mechanism for the
prevention of military administrative offences
under martial law
What are the directions for improving the
mechanism for preventing military
administrative offences under martial law?
The conducted analysis of the legislative
framework and case studies gives grounds to
determine some areas of improvement of the
mechanism for the prevention of military
administrative offences under martial law.
The main identified problem with regard to the
adopted Law No. 8271 is the limitation of the
rights of servicemen, which consists in the
significant dependence of the determination of
punishment on the command. In this regard,
certain provisions of Section IV of the Code of
Ukraine on Administrative Offences —
“Proceedings in cases of administrative offenses”
— need to be revised. According to Article 255,
in cases of military administrative offences, the
following persons are entitled to draw up the
reports:
− authorized persons of the management
bodies of the Military Law-Enforcement
Service of the Armed Forces of Ukraine;
− commanders (chiefs) of military units
(institutions), commanders of units;
− prosecutor.
In fact, official investigations and drafting of
protocols are carried out by battalion
commanders. In addition to the fact that their
views may be subjective, the current procedure
increases the risk of corrupt practices. Therefore,
it is appropriate to propose an amendment to the
legislation in such a way that the duty to draw up
protocols is assigned to the officers of the
Military Law-Enforcement Service.
It is also important to point out such
shortcomings as the “mixing” of violations of
military discipline committed by servicemen and
illegal (corrupt) actions of officials or abuse of
power (Article 172-13 of the Code of Ukraine on
Administrative Offences). Therefore, these
offences are completely different in nature and
purpose, and must be separated. Violation of
discipline by a serviceman should entail
punishment, which is fair. However, it often
happens that the discipline is violated for
emotional reasons, for example, fear of death. In
contrast, corruption is a deliberate act committed
with the aim of obtaining one’s own benefit.
It is also appropriate to note the shortcomings in
articles 172-20 on the consumption of alcoholic
and low-alcohol beverages or the use of drugs,
psychotropic substances or their analogues, and
266-1 on the examination of servicemen for the
state of alcohol, drug and other types of
intoxication. In order to avoid contradictions
regarding the circumstances under which the
examination is conducted, it is necessary to
simplify the process as much as possible using
modern technologies. We can take fines for
speeding based on video evidence — speed
cameras — as an example. Similarly, if a
serviceman is suspected of having the specified
conditions, it is appropriate to make a video
recording, which is immediately placed in the
database, as well as testing with special means
while recording the result. The procedure must
be carried out in the presence of an officer of the
Military Law-Enforcement Service, and in case
of refusal of the examination, the serviceman
must automatically receive a fine through the
Diia platform.
Ukraine still has some manifestations of Soviet
approaches to legal relations and responsibility.
It is appropriate to adjust the legal framework in
order to minimize such manifestations that can
cause real damage to national security — not
only from the part of servicemen, but also from
the part of the command. Establishing
responsibility is an effective method, because
impunity breeds new crimes. However, an
excessively increased responsibility may not
Volume 12 - Issue 63
/ March 2023
249
http:// www.amazoniainvestiga.info ISSN 2322- 6307
achieve the set goal, but only reduce motivation.
Therefore, along with the improvement of the
legal framework, it is reasonable to work on
increasing conscientiousness and motivation
among the servicemen, in particular, to revise the
system of punishments and rewards, as well as to
encourage servicemen to protect the country and
its people not through fear, but due to the
formation of a conscious attitude.
International experience in the prevention of
military offences
What aspects of international experience should
be adapted to Ukrainian practice in order to
improve the mechanism for preventing military
administrative offences under martial law?
It is appropriate to supplement the identified
areas of improvement with international
experience on the issue under research. The
application of international experience in
national practice with its preliminary adaptation
to Ukrainian realities will help to increase the
effectiveness of certain provisions of the Code of
Ukraine on Administrative Offences. As an
example, it is proposed to consider the United
States of America (USA) as a country with the
most powerful army in the world. Military
discipline and relevant legislation in the field of
military administrative offences play not the last
role in the country’s success in this area. In the
USA, compliance with military discipline is
ensured through effective solutions in the
following areas:
1. Servicemen training programmes. The US
Armed Forces have developed a number of
training programmes to ensure that
servicemen understand the legal and ethical
standards to which they must adhere.
2. Strong leadership. The US Armed Forces
value leadership and accountability at all
levels. This includes establishing clear
boundaries of power and responsibility,
promoting ethical behaviour, and holding
commanders accountable.
3. Strict compliance with legal and ethical
standards. The US military has a robust legal
system to enforce its standards. This system
ensures due process rights for accused
servicemen.
4. Regular revisions of policies and
procedures. The US Armed Forces regularly
revise their policies and procedures to ensure
they are current and effective in preventing
administrative offences.
5. Strong control and accountability
mechanisms. The US Armed Forces have a
number of mechanisms to ensure
accountability and transparency, including
internal audits, inspections and
investigations, as well as external
monitoring and reporting by independent
bodies (Department of Defense, 2015;
Department of Defense, 2019).
In addition to considering the practice of
preventing military administrative offences in the
USA, in the context of Ukraine’s integration into
the European Union (EU), it is appropriate to
determine the main aspects of combating the
specified crimes in European countries:
1. Implementation of clear rules and training:
EU member states have rules covering
military administrative offences, such as the
EU Code of Conduct in Military Operations.
According to the European Union Agency
for Fundamental Rights, training and
education are key to preventing misconduct
among the servicemen (FRA, 2018).
2. Strengthening accountability mechanisms:
The EU has created mechanisms to hold
servicemen responsible for their actions.
According to the report of the European
Defence Agency, accountability
mechanisms are crucial to ensure the
responsibility of servicemen (European
Defence Agency, 2020).
3. Promoting a culture of ethics and integrity:
the EU emphasizes the importance of a
culture of ethics and integrity in the
servicemen. According to a report by the EU
Institute for Security Studies, a culture of
integrity can help prevent offences by
providing a strong foundation for ethical
behaviour (EUISS, 2017).
4. Providing support to victims: the EU
provides support to victims of administrative
offences through military and civilian
missions. According to the report of the EU
Agency for Law Enforcement Cooperation,
providing support to victims is an important
aspect of preventing and responding to
misconduct among the servicemen (Europol,
2020).
The specified directions, provided their
adaptation to Ukrainian realities, can contribute
to the improvement of ethics and counteract
violations among the servicemen.
Discussion
What are the main innovations in the legislative
framework related to military administrative
offences? What advantages and disadvantages
250
www.amazoniainvestiga.info ISSN 2322- 6307
can be noted in Law No. 8271 when applied to
real situations?
The conducted analysis gave grounds to
determine that the motivation of the officials for
the adoption of Law No. 8271 is the need to
increase discipline and national security of
Ukraine under martial law. However, a number
of shortcomings in the law were identified in the
course of the analysis, which may nullify its high
goals. It is appropriate to consider the obtained
results through the prism of the views of other
researchers, lawyers, human rights defenders,
and other specialists. Bobrovska (2023) singles
out three main problems of the studied Law:
− procedural violations during adoption;
− lack of substantial evidence regarding
socially dangerous consequences as a result
of committing the specified offences;
− imbalance in the legal system, in particular,
lack of the possibility of commutation under
a number of articles for servicemen, while
the right to commutation is provided for
those accused of intentional murder, rape,
treason, etc.
Opryshchenko (2023) examines the views of
different population groups regarding the legality
of the adopted Law No. 8271. For example, Yu.
Hudymenko, Junior Sergeant of the Armed
Forces of Ukraine, notes that the law contradicts
the Constitution of Ukraine in view of the
violation of the equality of all citizens before
justice. Lawyer and combatant M. Nayem
believes that the law will not contribute to the
improvement of discipline, it only violates the
rights of servicemen. Paramedic Ya. Chornohuz
emphasizes that the law gives commanders the
possibility to threaten servicemen with
punishment for criticizing any of their decisions.
Other views of specialists are mostly focused
around the insecurity of servicemen compared to
the commanders, and the failure to take into
account various mitigating circumstances. An
important aspect is the clarification in the law
that an administrative case is not initiated during
the period of martial law, so the responsibility of
servicemen under all articles is qualified as
criminal, while both options are possible for the
commanders.
Nekrasov (2023) also provides some views of
journalists and analysts in the field. Journalist
Yu. Butusov summarized the main problem
associated with the adopted law, noting that the
document should have been aimed primarily at
the commanders, not at the rank-and-file.
The mentioned conclusions and observations of
the researchers are consistent with the results
obtained in the course of the author’s research
and mostly concern controversial points related
to the adoption of Law No. 8271. However, there
were a number of significant contradictions in the
legal framework even before the adoption of this
Law.
Pavlovska (2022) notes that one of the main
problems is the exercise of executive and judicial
power by one person — an official who has the
right to draw up protocols on violations.
Podoliaka & Domin (2020) proposed the
approach to solving this problem. Considering
the procedure for drawing up protocols on
military administrative offences, they note the
positive aspects of the right to draw up such
protocols by military prosecutors.
Some studies are focused on individual articles
of Chapter 13-B of the Code of Ukraine on
Administrative Offences. Ostapenko (2021)
focuses on the gaps in Article 172-15 of the Code
of Ukraine on Administrative Offences
“Negligent treatment of military service”. A
problematic aspect is the uncertainty as to
whether any disciplinary sanctions imposed on a
serviceman should be accompanied by a report
on a military administrative offence.
Ivashkovskyi (2021) also focuses on only one
article of Chapter 13-B of the Code of Ukraine
on Administrative Offences — 172-11
“Abandoning a military unit or place of service.”
However, in contrast to previous works, the
researcher proposes to expand sanctions and
mechanisms for bringing servicemen to justice in
this article.
The work of Fesenko et al., (2022) is another
study, which preceded the adoption of Law No.
8271 and in which the established responsibility
of servicemen for military administrative
offences is considered insufficient. Researchers
noted a significant increase in the number of war
crimes after 2014, which necessitates the
improvement of legislation in the military sphere.
What are the directions for improving the
mechanism for preventing military
administrative offences under martial law?
Merdova (2022) proposes considering the
commission of an administrative offence under
martial law as a circumstance that aggravates
responsibility for this offence. The researcher
proposes to define the conditions of martial law
as “other extraordinary circumstances” under
Volume 12 - Issue 63
/ March 2023
251
http:// www.amazoniainvestiga.info ISSN 2322- 6307
Article 35(I)(5) of the Code of Ukraine on
Administrative Offences.
Riabenko and Zoria (2019) focus on the
commission of corruption-related administrative
offences in the military sphere. Therefore, it is
necessary to revise not only the articles
establishing responsibility for servicemen, but
also the articles on abuse of power in order to
improve the legislation in the field of military
administrative offences.
What aspects of international experience should
be adapted to Ukrainian practice in order to
improve the mechanism for preventing military
administrative offences under martial law?
McGarrell (2020) examines a number of
preventive strategies that can help reduce
peacetime and wartime crime. The main
approaches described by the researcher are the
strategy of cascades and the development of
interaction between the community and law
enforcement agencies.
Beigbeder (2018) considered the ratification of
international treaties and conventions, such as the
Geneva Conventions and the Rome Statute of the
International Criminal Court, as the main way of
combating war crimes.
Bothe et al., (2013) emphasize the need to
improve the national and international legal
framework for the effective prevention of war
crimes. This includes ensuring that laws
criminalizing war crimes are in place, and that
investigative and prosecution mechanisms are
independent and impartial.
Weissbrodt & De La Vega. (2007) note the
importance of the role of education and training
in preventing war crimes. Well-designed
educational programmes can help prevent war
crimes by fostering students’ respect for human
rights, the rule of law, and international
humanitarian law.
Stahn (2008) identifies early warning and
response systems that can help prevent war
crimes by identifying potential conflicts and
responding to them before they escalate as an
effective way to prevent war crimes.
De Greiff (2014) focuses on peacekeeping and
peacebuilding: peacekeeping and peacebuilding
efforts can help prevent war crimes by addressing
the root causes of conflict, promoting dialogue
and reconciliation.
Conclusions
As a summary, it is appropriate to note that the
aim of the study — analyse the current state and
promising directions for improvement of the
mechanism for the prevention of military
administrative offences under martial law — was
achieved. This was implemented by fulfilling the
set objectives, in particular, the changes in the
legislative framework related to the adoption of
Law No. 8271 were analysed in detail. It was
noted that the main changes to Chapter 13-B of
the Code of Ukraine on Administrative Offences
relate to increasing the responsibility of
servicemen for committing military
administrative offences. It was noted that
increasing the punishment cannot always affect
the result properly, therefore, first of all, attention
should be paid to improving the legislative
aspects of proceedings in cases of military
administrative offences. The right to draw up a
protocol is proposed to be assigned to officers of
the Military Law Enforcement Service. It is also
proposed to improve the procedure of
examination of servicemen for the state of
alcohol, drug and other types of intoxication by
simplifying this procedure using modern
technological means. a case study was also
conducted in the article regarding the
determination of the effectiveness of Law No.
8271. The advantages and disadvantages of the
adopted law were established, so it needs further
revision and improvement. The analysis of
international experience identified aspects that
can be adapted to Ukrainian realities and used to
increase the effectiveness of combating military
crimes. As a result of the analysis, directions for
improving the mechanism for preventing military
administrative offences under martial law were
outlined.
Bibliographic references
Beigbeder, Y. (2018). Preventing War Crimes:
Challenges and Prospects. Routledge.
Bobrovska, S. (2023). Law 8271: Criminal law
against the combatant. Censor.NET.
https://censor.net/ru/b3397508
Bothe, M., Partsch, K. J., Solf, W. A. & Eaton,
M. (2013). New Rules for Victims of Armed
Conflicts: Commentary on the Two 1977
Protocols Additional to the Geneva
Conventions of 1949. Martinus Nijhoff
Publishers.
https://doi.org/10.1163/9789004254718
Chow, C.-H. N., & Yeh, I. (2021). Influence
Factors in the Effectiveness of National
Defense Anti-Corruption Governance.
Revista de Cercetare si Interventie Sociala,
252
www.amazoniainvestiga.info ISSN 2322- 6307
73, 262-275.
https://doi.org/10.33788/rcis.73.16
De Greiff, P. (2014). The Handbook of
Reparations. Oxford University Press.
Department of Defense. (2015). Department of
Defense Directive 5100.77: Department of
Defense Law of War Program.
https://www.esd.whs.mil/
Department of Defense. (2019). Department of
Defense Instruction 5505.17: Special
Victims' Counsel (SVC) Program.
https://www.esd.whs.mil/
Durnopianova, O. (2022). Bringing servicemen
to administrative responsibility under Part 3
of Art. 172-20 of the Code of Administrative
Offenses. Case processing statistics.
Volunteer movement "Lawyers of the ZSU".
https://acortar.link/h7Fa0S
EUISS. (2017). EUISS Yearbook of European
Security 2017.
https://www.iss.europa.eu/content/euiss-
yearbook-european-security-2017
European Defence Agency. (2020). Annual
Report 2020. https://acortar.link/0HjVAN
Europol. (2020). 2019 Consolidated Annual
Activity Report.
https://www.statewatch.org/media/1398/eu-
europol-annual-activity-report-2019.pdf
Fesenko, O., Kozakova, I., & Shnypko, O.
(2022). On the issue of legal liability for war
crimes. Scientific Bulletin of the Uzhhorod
National University. Series: Law, 2(74),
237-243. https://doi.org/10.24144/2307-
3322.2022.74.74
FRA. (2018). Fundamental Rights Report 2018.
https://acortar.link/1f0dso
Ivashkovskyi, R. (2021). Essence and system of
administrative offenses in the field of military
service. Scientific Works of National
Aviation University. Series: Law Journal
"Air and Space Law", 3(60), 85-89.
https://doi.org/10.18372/2307-
9061.60.15957
Kopotun, I. (2023). Scientific and practical
commentary on the Criminal Code of
Ukraine. Publishing house "Professional".
McGarrell, E. F. (2020). Cascades: war, crime,
peace, and crime prevention: reaction essay.
International Journal of Comparative and
Applied Criminal Justice, 44(3), 179-187.
https://doi.org/10.1080/01924036.2020.1737
952
Merdova, O. (2022). Committing an offense
under martial law, as a circumstance
aggravating responsibility for an
administrative offense. In: Activities of state
bodies under martial law: collection of
materials of the International Scientific and
Practical Online Seminar (pp. 175-177).
Donetsk State University of Internal Affairs.
https://acortar.link/3d8RHU
Nekrasov, A. (2023). Law project 8271:
Zelensky explained his decision to sign the
law on strengthening the responsibility of the
military. Stopcor. https://acortar.link/U9Frvj
Office of the President of Ukraine. (2022). Veto
the law No. 8271 on strengthening the
punishment of military personnel.
https://petition.president.gov.ua/petition/173
526
Opryshchenko, A. (2023). The military is
against, Zaluzhnyi - in favor. Finding out why
the new law on punishing the military during
the invasion is criticized. Zaborona.
https://acortar.link/6p2rf7
Ostapenko, I. (2021). Problems of protection of
human and citizen rights in the aspect of
administrative responsibility for negligent
attitude to military service. In: Krasnytskyi I.
(ed.) Theoretical and applied problems of
legal regulation in Ukraine: Collection of
materials of the 5th All-Ukrainian scientific
and practical conference (pp. 69-72). Lviv:
Lviv State University of Internal Affairs.
https://dspace.lvduvs.edu.ua/bitstream/1234
567890/4265/1/10_12_2021.pdf#page=69
Pavlovska, N. (2022). Some issues of
administrative offenses. Analytical and
comparative jurisprudence, 2, 233-236.
https://doi.org/10.24144/2788-
6018.2022.02.44
Pietkov, S. (2020). Scientific and practical
commentary on the Code of Ukraine on
administrative offenses. Yurinkom Inter.
Podoliaka, A., & Domin, Y. (2020). Drawing up
reports on military y administrative offenses
by military prosecutors: specifics and
powers. VISEGRAD, 5, 291-296.
https://journal-vjhr.sk/wp-
content/uploads/2021/11/VJHR-521-
Last.pdf
Riabenko, H. M., & Zoria, O. V. (2019).
Activities of the military prosecutor's office
in combating corruption offenses in the
military sphere. In: Implementation of state
anti-corruption policy in the international
dimension: Materials of the IV International
Scientific and Practical Conference
(pp. 193-197). Ministry of Internal Affairs of
Ukraine.
http://elar.naiau.kiev.ua/jspui/handle/123456
789/16401
Simmons, C. (2021). The Scope of Military
Jurisdiction for Violations of International
Humanitarian Law. Israel Law Review,
54(1), 3-23.
https://doi.org/10.1017/S0021223720000217
Volume 12 - Issue 63
/ March 2023
253
http:// www.amazoniainvestiga.info ISSN 2322- 6307
Stahn, C. (2008). The Law and Practice of
International Territorial Administration:
Versailles to Iraq and Beyond. Cambridge
University Press.
https://doi.org/10.1017/CBO9780511585937
Steshenko, A. (2022). 8271: Justified harshness
or a whip for the military? LB.ua.
https://lb.ua/news/2022/12/21/539895_8271
_vipravdana_suvorist_chi_batig.html
Verkhovna Rada of Ukraine. (2022). On making
changes to the Code of Ukraine on
Administrative Offenses, the Criminal Code
of Ukraine and other legislative acts of
Ukraine regarding the specifics of military
service under martial law or combat
conditions.
https://zakon.rada.gov.ua/laws/show/2839-
20#Text
Verkhovna Rada of Ukraine. (2023). Code of
Ukraine on Administrative Offenses (Articles
1 - 212-24).
https://zakon.rada.gov.ua/laws/show/80731-
10#Text
Verkhovna Rada of Ukraine. (2023a). Code of
Ukraine on Administrative Offenses (Articles
213 - 330)
https://zakon.rada.gov.ua/laws/show/80732-
10#Text
Weissbrodt, D. S., & De La Vega, C. (2007).
International human rights law: an
introduction. University of Pennsylvania
Press.