CRIMINAL LIABILITY FOR VOLUNTARY SURRENDER TO CAPTIVITY: ISSUES OF LEGAL QUALIFICATION AND EVIDENCE UNDER MARTIAL LAW

Abstract

The article provides a comprehensive analysis of criminal liability for voluntary surrender to captivity under Article 430 of the Criminal Code of Ukraine through the prism of judicial practice, criminal law doctrine, international humanitarian law, and international human rights standards. The study examines the mandatory elements of the corpus delicti, focusing on both objective and subjective components, including the legal interpretation of "voluntariness," "cowardice," and "lack of fortitude," as well as the evidentiary challenges associated with proving these elements in criminal proceedings. Particular attention is paid to the absence of a statutory definition of voluntary surrender, which significantly complicates the qualification of the offence and the assessment of criminal liability. The research establishes that the Unified State Register of Court Decisions contains no independent judgments delivered solely under Article 430 of the Criminal Code of Ukraine. Therefore, the analysis relies on judicial practice concerning desertion and high treason, where the fact of surrender to captivity is considered in determining criminal liability. Based on the examined case law, the article identifies the principal criteria influencing criminal liability, including the actual possibility of continuing resistance, the voluntary nature of surrender, direct intent, specific motives, and the serviceman’s conduct before and after capture. The paper further analyses the compatibility of criminalising voluntary surrender with the principles of humanity, proportionality, and the right to life protected by international humanitarian law and international human rights law. It is argued that the current wording of Article 430 lacks sufficient legal certainty and requires legislative clarification regarding the notion of voluntary surrender, the circumstances excluding criminal liability, and the evidentiary standards applicable in such cases.