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Publication date: 06.05.2024
active and purposeful military lawyer with more than 4 years of experience
Evaders from mobilization are expected to be punished
What is the punishment for evading mobilization?
There is one article for evasion of military service during mobilization — article 336 of the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine).
But what is popularly called "evasion" can actually entail both administrative and criminal liability.
"Now we do not consider military offenses, such as voluntary desertion, desertion, disobeying orders - there are other articles, a different composition of the offense, other punishments. Evading mobilization is the evasion of conscripted civilians," explains Andrii Novak.
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• damage to military registration documents or their loss due to carelessness (Article 211 of the Code of Administrative Offenses) — entails a fine of three to seven tax-free minimum incomes of citizens (from UAH 51 to UAH 119);
• violation by conscripts, conscripts, and reservists of the rules of military accounting (this refers to failure to appear at the military commissariat to clarify accounting data, refusal of a summons without legal grounds, etc.) — Article 210-1 of the Code of Administrative Offenses.
It entails the imposition of a fine from 200 to 300 of the tax-free minimum income of citizens — from 3,400 to 5,100 hryvnias.
The heads of the TCCSP independently consider the administrative case and pass a resolution on prosecution.
Such a decision can be annulled only in a court of law, by filing a lawsuit against the picking center.
"Some state institutions and bodies are authorized to bring citizens to administrative responsibility.Border Service - for illegal border crossing; the patrol police - for violating traffic rules," the lawyer elaborates.
Military commissions can consider administrative cases of prosecution under some articles.
For example, an "administrative woman" will be charged with evading the requirement of a subpoena — to appear at the military commissariat to clarify credentials.
Or if a conscript has lost or damaged his military document — a registration card, a temporary ID card, or a military card. This is within their competence," the expert adds.
Criminal liability arises in several cases. This issue is regulated by a number of articles:
• Article 336 of the Civil Code (most relevant in wartime) — evasion of conscription for military service during mobilization, for a special period, for military service upon conscription of reservists in a special period;
• Article 336-1 of the Civil Code — evasion of civil defense service during a special period or in case of targeted mobilization;
• Article 337 of the Civil Code—evading military registration or educational (special) fees;
• Article 335 of the Civil Code — evasion of conscription for military service, military service by conscription of officers.
The most widespread and relevant in wartime is Article 336 — evasion of conscription for military service during mobilization.
This crime is punishable by imprisonment for a term of 3 to 5 years. However, a real punishment can be replaced by a probationary period - and in our realities this happens very often.
The term of the examination, which is popularly called "conditional", can last from 6 months to 3 years, but the most common is from one to two years.
"Most solutions are very light. The court takes into account that this is not a serious offense, that the conscript admitted his guilt, cooperated with the investigation, did not deny anything - they are found guilty and in 90% of cases they are given a probationary period under Article 75 of the Criminal Code.
Theoretically, they can be sent to community service, but I have seen only one such case," says the lawyer.
A person who received a probationary period must fulfill the duties assigned to him (register with the precinct officer) and not commit other criminal offenses.If she commits a new crime, the probationary period will be canceled and the person will serve a prison term.
How are evaders punished? Judicial practice
There are different cases. Administrative responsibility is provided for one non-appearance at the military committee, but if the conscript did not arrive at the assembly point or ran away on the way to the military unit, this is already a crime.
Sentencing depends on many factors, as the court also considers mitigating circumstances (such as genuine remorse) and aggravating circumstances (such as resisting a subpoena).
And if a man not only refuses to serve, but also fights with representatives of the Military Commissariat, another criminal article may be added (for example, for resisting a representative of the authorities or for causing bodily harm).
"Aggravating circumstances can be a bad performance at work, the presence of other previous criminal convictions for any offenses, repeated offenses under the same article, being on a drug record or alcoholism, physical resistance to representatives of the TCC," Novak says.
Very often "criminal" sentences end with probation, but there are cases when the evader does end up in prison.
Let's consider different cases of criminal cases. Guilty verdicts. Real imprisonment
In Zhytomyr region, a native of Donetsk region, who works as a wire assembler, received 3 years in prison for evading mobilization.
On September 1, 2022, the man passed a medical examination, he was found fit, and he did not object. But 10 days later, he did not show up at the collection point for conscripts to be sent to the Armed Forces.
The man fully admitted his guilt.
At the same time, the Novograd-Volyn city-district court of the Zhytomyr region did not believe in sincere remorse. The man was sentenced to 3 years of imprisonment.
A native of Soledar, Donetsk region, who evaded mobilization, was tried in Volyn. The civilian man does not work, has a 6-year-old child, but has lost contact with her.
The accused explained to the court that he was wounded in Soledar and lost all his property, so he decided not to join the army.
"Knowing about the criminal liability, he decided to avoid being called up for military service during mobilization, so he did not arrive at the specified time and date for military service...
The accused fully admitted his guilt in the charges brought against him, repented, which the court took into account as mitigating circumstances," says the court case.
The Kovel city and district court of the Volyn region sentenced the man to 3 years in prison.
Conditional term
A native of Dnipro, who works as a milling machine, appeared on March 7, 2023, when summoned to the military commissariat.
The VLK recognized him as fit for military service. It was explained to the man that he would be drafted into the Armed Forces, and a summons was handed over to the department from where the mobilized were to go to the military unit.However, the resident of Dnipro refused to receive the summons and wrote a statement of refusal to mobilize in his own hand.
Pershotravensky city court of Dnipropetrovsk region recognized that in this way the man "evaded conscription for military service during mobilization, for a special period."
At the same time, the judge took into account the sincere remorse of the accused.
The man was sentenced to 4 years of imprisonment, which was later replaced by a probationary period of 1 year.
A more interesting case happened in Transcarpathia. The father of two children "got lost" on the way to the military unit.
The man pleaded not guilty and explained to the court that on March 17, 2022, he was driving a car, and he was stopped and forcibly served with a summons.
The next day, the man appeared at the military commissariat, but he was told that he still needed to get an identification code, so he went home to collect the documents and returned.
"He did not pass the medical board, he was only pushed to sign some paper, which he signed without reading. After that, they got on the bus and went On the way, they stopped twice: once to the toilet, and the second time to the store.
We arrived at the checkpoint, everyone got out and started smoking. He left without his things. It was around half past eleven in the evening. He started talking on the phone, moved a little to the side towards the houses. He wanted to buy a beer, started looking between the houses, and about 10 minutes later realized that he was lost," says the court case.
According to the man, he had two phones - one was used, and the other was working. The Transcarpathian tried to call the police, went to another village, saw a post.
From where three guys came out, to whom he "explained the situation" and gave his passport. The man was fed and brought to the military commissariat in Sambir.
Then the management came and said that he had to go to Khust. The man returned to Khust on Sunday, and on Monday he went to the TCC with a lawyer. Then the man was arrested and taken into custody.
At the same time, the testimonies of the witnesses differ significantly from this dramatic story. The Transcarpathian received a "combat summons" and refused the medical commission. The dispatch took place, and in the evening it became known that the man ran away while lining up at the checkpoint and did not answer calls, and then he was found.
The Khust District Court of the Transcarpathian Region recognized that the accused's stories were "illogical, inconsistent and not based on the behavior of a reasonable person."
The man was found guilty under Article 336 of the Criminal Code and sentenced to 4 years in prison.
However, the court released the "lost" conscript from serving his sentence and sentenced him to 3 years probation.
In general, sentences with conditional terms are quite similar. However, it is interesting to investigate what explanations the petitioners provide to the court.The most common reason is fear for one's life and health. For example, for this reason, a resident of Poltava Oblast did not appear at the specified place to be sent to the military unit in February 2023.
The father of the minor child, who holds the rank of sailor, sincerely repented and entered into a plea agreement with the prosecutor.
The Chornukhyn district court of the Poltava region sentenced him to a year of probation instead of 4 years of imprisonment.
Likewise, a resident of Vinnytsia, who works as a junior receiver of goods at "ATB", refused to go to the training center in November 2022, because "he was not morally ready to fight."
At first, the man hid in the forest, then at home, and finally he himself came to the police and reported his crime. In January 2023, the police officer again tried to hand the man a summons, but he categorically refused.
The offender stated that he "does not want to go to war" and is afraid that he will not be able to cope with the duties assigned to him.
The Mogilev-Podilskyi City and District Court of the Vinnytsia Region took into account the man's confession and "active assistance" to justice, but did not believe in remorse.
Thus, the man received 2 years of probation instead of 3 years of imprisonment
And here is another case - a resident of the village of Manevichi in Volyn was of limited fitness and had no legal grounds for a postponement, but he did not want to serve, so he evaded the draft and did not appear at the assembly point.
According to the man, he believed that he would "bring much more benefit to society by engaging in entrepreneurial activities", providing the population with products, providing ten jobs, regularly paying taxes and engaging in volunteer activities.Last year, the Manevytskyi District Court of the Volyn Region found the man guilty of a criminal offense and sentenced him to a year of probation instead of 3 years in prison.
