What is AWOL and desertion: the legal difference in 2026

In 2026, some rules regarding liability for evading military service in Ukraine have changed. Let’s look at the key nuances and consequences for those who violate military discipline under current conditions.

AWOL and desertion — what is the difference?

AWOL (absence without leave) refers to the unauthorized leaving of a place of military service for a certain period with the intention of returning. Desertion is the unauthorized leaving of a place of service without the intention to return, meaning a clear refusal to fulfill military duty. In cases of AWOL, a servicemember may return, and their actions are considered a temporary violation. Desertion is a more serious offense and entails stricter criminal liability under the law.

What is the criminal liability for AWOL during martial law?

AWOL during martial law in Ukraine is considered one of the most serious violations. Under Article 407 of the Criminal Code, the punishment for such an offense ranges from five to ten years of imprisonment. In peacetime, liability for AWOL is significantly lower: the punishment depends on the specific part of the article and may include restriction of liberty, disciplinary measures, or imprisonment for up to three years. Under martial law, alternative measures such as corrective labor or fines are not предусмотрены — the court is required to impose a sentence of imprisonment.

What liability is предусмотрена for desertion during wartime?

Desertion entails criminal liability under Article 408 of the Criminal Code of Ukraine. Unauthorized abandonment of a military unit or place of service with the intent to evade military duty is punishable by imprisonment for a term of five to twelve years. During wartime, courts apply the strictest penalties for desertion, as such actions are regarded as a serious threat to military discipline and the state’s defense capability.

How does AWOL differ from desertion from the courts’ perspective?

From a legal standpoint, criminal liability for AWOL and desertion is regulated by different provisions of the Criminal Code of Ukraine:

• Article 407 of the Criminal Code governs liability for AWOL (unauthorized absence from a military unit);
• Article 408 governs liability for desertion.

However, the key distinction emphasized by courts is the servicemember’s intent. In cases of AWOL, it concerns unauthorized absence from a unit without permission, but without a final intent to evade military service. In desertion cases, investigators must prove that the person had no intention of returning from the very beginning. Since this is difficult to establish in practice, many cases are reclassified from Article 408 (desertion) to Article 407 (AWOL), and the accused is held liable for AWOL instead.

How does the duration of absence affect legal qualification?

It is generally assumed that the longer a person remains absent from a unit, the stronger the suspicion of desertion becomes. In such cases, charges of desertion may be applied. However, according to judicial practice, duration alone is not sufficient evidence. Even if a servicemember has been absent for six months, a year, or longer, investigators and courts must still prove intent not to return. If such intent is not proven, the case is usually classified as AWOL, and liability is imposed under Article 407.

What is the position of the Supreme Court in AWOL cases?

Until 2023, the Supreme Court considered AWOL and desertion cases under general criminal law provisions. Articles 69, 75, and 76 of the Criminal Code were applied, allowing for mitigation of punishment. If a person committed the offense for the first time, had difficult family circumstances, or health issues, the court could impose a lighter sentence, including a suspended sentence for AWOL.

However, after legislative changes in early 2023, Articles 75 and 76 are no longer applied in cases of AWOL and desertion. As a result, in around 95% of cases, the minimum punishment is five years of imprisonment. Even with mitigating circumstances, courts generally cannot impose a suspended sentence. At the same time, if the act of unauthorized absence occurred before 2023, courts may apply the previous rules, including provisions allowing for mitigation.

Preventive measures during investigation

Court practice also concerns preventive detention during the investigation. Since the sanction for AWOL includes imprisonment starting from five years, courts most often choose detention as a preventive measure. More lenient measures, such as house arrest or personal recognizance, are used significantly less often. The issue of bail is decided individually. Despite legal restrictions, courts sometimes allow bail, in which case the person may remain free until the verdict is issued.

Judicial practice regarding desertion during wartime

Judicial practice in cases of desertion is relatively rare, as most such situations are classified by investigators as AWOL (unauthorized absence from a military unit). Proving the intent to permanently evade military service is quite difficult. When reviewing such cases, courts rely on the provisions of the Criminal Code of Ukraine, in particular Article 401, which defines which acts are considered military criminal offenses. This norm effectively sets the framework for applying articles on AWOL and desertion.

What sentences are actually imposed by courts in 2024–2026?

Recent judicial practice in AWOL cases shows several typical outcomes. The legislation allows for exemption from criminal liability for AWOL if a servicemember committed the offense for the first time and voluntarily decided to return to service. In such cases, the court may close the proceedings and send the person back to the military unit. Sometimes they may even be transferred to another unit if there is readiness to accept them. However, this rule applies only once. In the case of repeated offenses, exemption from liability is no longer possible. If the person does not return to service or there are no grounds for exemption, courts usually impose actual imprisonment. Even in cases where liability is waived, information about the AWOL incident remains in law enforcement databases.

When can a court impose a suspended sentence?

After the pre-trial investigation is completed, the indictment is submitted to the court, which verifies the presence of a criminal offense and issues a decision. If guilt is confirmed, the court issues a conviction for AWOL and imposes a sentence. Acquittals are rare, as the fact of a servicemember’s absence is relatively easy to establish through internal investigations, testimony from fellow soldiers, and other evidence. Before the legislative changes in 2023, courts could impose suspended sentences. This was possible under Articles 75 and 76 of the Criminal Code of Ukraine. Such leniency was sometimes applied, for example, in cases of first-time offenses or the presence of mitigating circumstances.

Are Articles 69 and 75 of the Criminal Code of Ukraine applied in AWOL cases?

Article 75 of the Criminal Code of Ukraine is currently not applied in practice in cases of AWOL (SZZCh) and desertion. Previously, it allowed courts to impose a suspended sentence if they considered that rehabilitation was possible without imprisonment, but since 2023 this provision has been significantly restricted. As of now, courts are effectively required to impose real imprisonment for AWOL or desertion, typically for a term of at least five years.

Article 69 of the Criminal Code has not been abolished, but in practice it is applied very rarely. Its use requires the presence of several mitigating circumstances at once: cooperation with the investigation, extreme necessity, personal characteristics of the accused, motives, and other factors. Only when these conditions are met simultaneously may the court reduce the sentence. Courts are reluctant to apply Article 69, as it requires detailed justification for leniency and places responsibility on the court for reducing the sentence.

When is exemption from criminal liability for AWOL possible?

Exemption from criminal liability for AWOL may occur in two situations:

• if the court, based on Article 69 of the Criminal Code, determines that sufficient mitigating circumstances exist and the application of this provision is justified;
• if the servicemember voluntarily agrees to return to service and demonstrates willingness to reform.

In both cases, the court’s decision depends on the specific circumstances of the case and the motives of the accused.

How does exemption from criminal liability for AWOL work in practice?

After the investigation is completed, the court reviews the case and, if the servicemember committed AWOL for the first time and voluntarily expressed a desire to return to service, issues a ruling exempting them from criminal liability and ordering their return to a military unit. There are three main scenarios for returning to service:

• Return to the same unit – the servicemember submits a request to return, and the unit confirms readiness to accept them. This option is rare, as the unit may refuse or the servicemember may not want to return due to previous conditions of service.
• Transfer to another military unit – requires consent from the receiving unit. This is more common for qualified specialists. The unit submits an official request confirming readiness to accept the servicemember. Alternatively, the servicemember may voluntarily report to the State Bureau of Investigation, which then submits a motion to the court to close the case and assign the new unit.
• Assignment to a reserve military unit – used when there is no possibility to return to the previous unit and no agreement with another unit. In such cases, the servicemember may be transferred to a reserve unit and still be exempt from liability, but the reserve unit later has discretion over further assignment.

Before returning, it is important for the servicemember to consider where they are willing to serve and what duties they may be assigned in order to avoid repeated conflicts or violations.

What conditions are required for exemption from criminal liability with continuation of service?

Exemption from criminal liability with the possibility of continuing military service is possible only if certain conditions are met. The court takes into account whether the person demonstrates a willingness to reform and return to service. The main conditions are:

• the offense is committed for the first time (first AWOL/SZZCh);
• the servicemember voluntarily expresses the desire to return to service;
• the military unit is ready to accept the servicemember back and agrees to continue their service.

Only if all three conditions are met can the court issue a decision exempting the person from criminal liability and directing them back to the unit.

Are acquittals possible in AWOL or desertion cases?

In theory, acquittals in AWOL or desertion cases are possible if it is proven that the servicemember did not commit the offense. However, in practice such cases are extremely rare, since the fact of absence from a military unit is usually easy to document.

An acquittal may be issued if it is established that the servicemember left the unit not of their own free will—for example, if they were taken prisoner, forcibly detained by the enemy, or otherwise had no intent to evade service. In such cases, the court may conclude that there is no criminal offense and close the proceedings.

What evidence can lead to acquittal of a servicemember?

For an acquittal in AWOL or desertion cases, the key factor is the absence of intent and the absence of a criminal act. Evidence must be objective and confirm that the person had no intention of evading service. This may include witness statements, service records, official reports on the combat situation, or other factual materials that support circumstances excluding intent.

Why is a lawyer’s consultation important in AWOL and desertion cases?

A legal consultation in AWOL or desertion cases is essential to obtain an objective understanding of possible consequences and to determine which actions are safe for the servicemember. The request may be made by the person themselves, their relatives, friends, or acquaintances. During consultation, a lawyer explains in detail the possible scenarios depending on the client’s decisions: hiding, continuing civilian life, or voluntarily returning to the military unit. Lawyers also accompany the entire process of voluntary appearance and communication with investigators, monitor the submission of necessary documents and motions to the court, and help minimize delays. Additionally, they provide legal representation in court. Legal professionals work to resolve the issue as efficiently and quickly as possible.