This dissertation is aimed at preparing scientifically based proposals aimed at improving the said criminal law provisions (Article 405 of the CC of Ukraine) and related legal relations, and also at improving the efficiency of criminal law specifically in the area of military legal relations related to the chain of command and compliance with military discipline, which provide for impeccable and strict compliance by all servicemen with the procedure and rules established by the statutes of the Armed Forces of Ukraine and other legislation of Ukraine.
The content of this dissertation is based on a comprehensive and systematic criminal law characterisation of the military criminal offence under Article 405 of the Criminal Code of Ukraine.
The research was carried out within the framework of the current period for Ukraine, when the Armed Forces of Ukraine, other military formations established in accordance with the laws of Ukraine, and the entire Ukrainian people are defending their right to exist as a sovereign, independent, democratic, social, and legal state.
As a result of the scientific analysis of the theoretical state of the issue, its legislative regulation, and the practice of application of current legislation, the author makes important and substantial proposals for the science of criminal law, and formulates new provisions and conclusions.
In the course of the study, the author conducted a cross-cutting review of the legislative material containing references to the provisions on military criminal offences under Article 405 of the Criminal Code of Ukraine, analysed all 203 verdicts published in the Unified State Register of Court Decisions of Ukraine delivered between 2011 and 2022 in terms of criminal liability for threatening or violence against a superior, and interviewed 277 respondents on the issue.
The analysis of court practice (2014-2021) for crimes under parts 1-4 of Art. 405 of the Criminal Code of Ukraine shows that, in the opinion of the thesis, the courts overwhelmingly sentenced the majority of 177 convicted servicemen to punishments that were disproportionate to the public danger of threats and violence against commanders/superiors and did not take into account that these crimes were committed during a special period on the territory of the state, which is a circumstance that aggravates punishment when the Russian Federation is currently waging an aggressive war against Ukraine. Therefore, the criminal policy of the courts when considering military criminal offences (crimes under Article 405 of the CCU) should be adjusted towards the severity of the sentences imposed, their greater effectiveness (convictions) in preventing criminal offences among military personnel.
At the same time, the practice of application by the courts of Ukraine of the requirements of Articles 45-49 of the CC of Ukraine shows that these grounds for exemption from criminal liability of servicemen for committing crimes under Parts 1-4 of Article 405 of the CC have not been applied, as they encroach on the basic principle of the military structure - unity of command, which is, among other things, the basis for military discipline.
In addition, the analysis of court practice shows the need to increase the minimum penalty of imprisonment for a fixed term under Part 4 of Article 405 of the CC of Ukraine from 5 to 6 years for threats or violence against a superior committed by a group of persons, or repeatedly, or with the use of weapons or ammunition, or which caused grave consequences, or in martial law or combat situations.
By the nature and content of the study, the thesis is the first comprehensive and systematic research work in Ukraine on criminal liability for threatening or using violence against a superior under Article 405 of the Criminal Code of Ukraine. The specific contribution to the scientific development of this issue is the formulation of scientifically sound proposals aimed at improving the specified criminal law provisions (Article 405 of the CC of Ukraine), as well as at increasing the efficiency and regulatory nature of criminal law in this particular area.
