Mobilization of the Defendant: Custody or Suspension of Proceedings?

Authors: Kostiantyn Doroshenko, Managing Partner of Grain Law Firm
Oleksandr Zaitsev, Attorney at Grain Law Firm

On February 24, 2022 – the beginning of the full-scale invasion of Ukraine by the aggressor state – martial law was introduced on the territory of Ukraine by Presidential Decree No. 64/2022, approved by Law No. 2102-IX, due to the military aggression of the russian federation, in accordance with paragraph 20 of part 1 of Article 106 of the Constitution of Ukraine and the Law of Ukraine “On the Legal Regime of Martial Law.”

On March 3, 2022, based on Law No. 2105-IX, Presidential Decree No. 65/2022 of February 24, 2022 was approved, declaring general mobilization on the territory of Ukraine in accordance with paragraphs 1, 17, and 20 of part 1 of Article 106 of the Constitution of Ukraine.

Subsequently, the duration of martial law and general mobilization has been repeatedly extended for successive 90-day periods by Presidential Decrees approved by respective laws of Ukraine.

On May 1, 2022, the Law of Ukraine “On Amendments to the Criminal Procedure Code of Ukraine Regarding the Improvement of Criminal Proceedings Under Martial Law” No. 2201-IX of April 14, 2022 entered into force, which, among other things, amended part 1 of Article 335 of the Criminal Procedure Code of Ukraine (hereinafter – the CPC).

In particular, it was established that if the defendant is conscripted for military service during mobilization in a special period, the court shall suspend the criminal proceedings against such defendant until his discharge from military service and shall continue proceedings against other defendants, if applicable.

On April 16, 2025, the Chairman of the Committee of the Verkhovna Rada of Ukraine on Law Enforcement, S.K. Ionushas, together with a group of Members of Parliament, registered Draft Law No. 13178 “On Amendments to the Criminal Procedure Code of Ukraine Regarding Written Proceedings and Certain Procedural Actions.”

This draft law proposes amendments to Article 335 of the CPC, providing that the court shall suspend proceedings if the defendant is mobilized or serves under contract, except where such defendant does not object and is able to participate in hearings.

The above legislative changes reflect a broader state policy regarding the mobilization of suspects and defendants, including those in custody or already convicted, and the regulation of how criminal proceedings continue during military service.

Moreover, mobilization of persons subject to criminal prosecution is even encouraged by the state, including through the possibility of changing detention to a milder preventive measure if the person agrees to serve in the Armed Forces of Ukraine (AFU).

In general, mobilization legislation has been progressively liberalized, removing restrictions that previously prevented persons under criminal prosecution from serving in the military.

This indicates that the state does not consider such mobilization to create risks or negative consequences. Otherwise, legislative changes would have introduced prohibitions on military service for such persons.

Thus, current policy clearly facilitates the involvement of defendants in the Armed Forces of Ukraine in fulfillment of their constitutional duty to defend the state.

The wording of part 1 of Article 335 of the CPC (as of May 1, 2022) is imperative: once the court becomes aware that the defendant has been mobilized, it has no discretion and must suspend the proceedings.

The proposed amendments would introduce a discretionary element, allowing proceedings to continue if the defendant consents and circumstances permit participation.

However, the key question is whether mobilization of a defendant can be treated as a “risk of absconding” justifying detention.

This issue arises when a defendant independently decides to fulfill their constitutional duty by joining the Armed Forces of Ukraine through a Territorial Recruitment and Social Support Center (TRC) or via direct recruitment to a military unit.

The answer appears straightforward given the legal framework. However, in practice, courts sometimes interpret mobilization as a risk of absconding and justify detention on that basis.

The reasoning is that the defendant allegedly seeks to avoid procedural obligations, such as appearing before the court under part 7 of Article 42 of the CPC.

Such an interpretation is problematic and incompatible with constitutional guarantees, as mobilization is a lawful exercise of a constitutional duty.

Article 65 of the Constitution of Ukraine establishes the duty of citizens to defend the independence and territorial integrity of Ukraine.

A similar obligation is contained in Article 1 of the Law of Ukraine “On Military Duty and Military Service.”

Under Article 19 of the Law of Ukraine “On Law-Making Activity,” the Constitution has the highest legal force, and all other laws must comply with it.

Therefore, the conclusion that procedural obligations under the CPC override constitutional duty is legally incorrect.

Mobilization cannot be equated with absconding, as the person’s whereabouts are known, and no concealment occurs.

Accordingly, changing a preventive measure to detention solely on the basis of mobilization contradicts both criminal procedural and constitutional principles.

Even if the defendant or counsel duly informs the court of mobilization and requests suspension of proceedings, this cannot be treated as evasion of justice.

This logic can be expressed as:

mobilization (constitutional duty)

• request to acknowledge valid absence (procedural duty)
• motion to suspend proceedings (procedural right)
  = risk of absconding and detention

Such reasoning is legally unfounded.

Even if the court considers absence unjustified, the CPC provides alternative measures such as fines (Article 144) or compulsory appearance (Article 140), but not detention.

The application of Article 335 CPC must also remain consistent even where the defendant had a theoretical right to deferment, since the constitutional duty prevails over statutory exemptions.

Deferral or reservation mechanisms do not eliminate the constitutional obligation to defend the state; they only regulate the manner of its execution.

In summary:

• Article 335 CPC is imperative in nature and reflects state policy supporting military service of defendants;
• Article 65 of the Constitution has higher legal force than statutory provisions;
• Mobilization cannot be treated as absconding or procedural violation;
• Procedural rights exercised in connection with mobilization cannot justify detention;
• Supreme Court practice generally supports prioritization of military duty during martial law.

Therefore, once mobilization is established, the court must suspend proceedings rather than interpret such mobilization as a breach of procedural obligations or a risk of absconding.