Concerning the subject composition of military criminal offenses

Abstract

The article presents a scientific analysis of the list of persons (subjects) who may be held criminally liable for committing military offenses. The author deter- mines that the subject of a military criminal offense must meet the characteristics of a general subject of a criminal offense (natural person, sanity, attainment of the age of criminal responsibility) and have an additional characteristic (belong to the circle of persons performing military service and specified in Article 401 of the Criminal Code of Ukraine). It is stated that liability for military criminal offenses should be incurred in case of their commission by servicemen, persons liable for military service and reservists during training, and by police officers of the Special Police of the National Police of Ukraine who are involved in direct participation in hostilities during martial law. At the same time, there is an inconsistency in the regulatory framework for the subjects of responsibility for committing military offenses due to the use of the phrase "other persons determined by law". Based on the legislative construction and use of this phrase, its broad interpretation leads to the conclusion that the subjects of military offenses may be persons who are neither military personnel nor reservists, nor persons liable for military service participating in training, nor special police officers involved in direct participation in hostilities. The author notes a high degree of blanketness of the norms regulating the subjective composition of military criminal offenses. The author identifies a certain inconsistency between the provisions of the law defining the concept of a military criminal offense, the subjects who may be liable for their commission and the provisions of Article 435-1 of the Criminal Code of Ukraine "Insult to the honor and dignity of a serviceman, threat to a serviceman", according to which persons who have the characteristics of a general subject of a criminal offense may be held liable for committing the acts provided for therein. As a conclusion, the author suggests that it is difficult to understand the range of subjects of military offenses and that there is a need for further improvement of the current law on this issue.