Administrative liability of military personnel under martial law in Ukraine: problems of law enforcement

Abstract

The article examines the peculiarities of legal regulation and practice of bringing military personnel to administrative responsibility under martial law in Ukraine, taking into account their special administrative and legal status. The interaction of the norms of administrative and military legislation, which provides for the priority of disciplinary liability while maintaining the possibility of bringing military personnel to administrative responsibility in court in cases provided for by law, is analyzed. Particular attention is paid to the problems of law enforcement related to the distinction between disciplinary and administrative liability, in particular in cases where different types of legal liability are applied for the same act, which contradicts the principle of non bis in idem and constitutional guarantees. It has been established that the principle of non bis in idem performs the function of a procedural safeguard against repeated and excessive punishment, but does not exempt military personnel from legal liability. The paper analyzes the judicial practice of the Supreme Court and the European Court of Human Rights, which demonstrates the need to comply with procedural guarantees, ensure the right to defense, as well as compliance with special rules for administrative detention and medical examination for intoxication. Systemic problems of the application of administrative responsibility of military personnel are considered, in particular, conflicts between the norms of the Code of Ukraine on Administrative Offenses and the Disciplinary Statute of the Armed Forces of Ukraine, difficulties in law enforcement and limited access to participation in court hearings in connection with the performance of combat missions. The need to introduce clear criteria for determining the corpus delicti, specialized mechanisms of legal assistance, digitalization of procedural procedures and integration of military registration systems with court registers was emphasized. The conclusions of the article confirm that the priority of disciplinary liability does not exempt the state from the obligation to ensure the standards of fair conduct and protection of human rights under martial law, and compliance with the principle of non bis in idem is key to the legality and effectiveness of administrative and jurisdictional proceedings against military personnel.

The methodological basis of the study is made up of general scientific and special legal methods of cognition, in particular formal legal, system-structural, comparative legal methods, as well as the analysis of the judicial practice of the Supreme Court and the European Court of Human Rights.