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For Draft dodgers

The Constitution of the Russian Federation stipulates that defense of the motherland is a duty and responsibility of a citizen of the Russian Federation. A citizen shall perform military service in accordance with the federal law and shall have the right to substitute it for alternative civilian service as specifically provided by the federal law (Art. 59).

Analysis of court rulings indicates that in resolving cases related to evasion of military or alternative civilian service, most of the times the courts apply the provisions of the Criminal Code of the Russian Federation properly. At the same time, in reviewing such cases the courts encounter difficulties with legal treatment of actions of individuals evading medical examinations and draft commission meetings during the call to military service. There were occasions when citizens were unreasonably convicted of evading alternative civilian service due to incorrectly established corpus delicti for this crime.

Evasion of the call to military service can be committed by unjustified absence from the medical examination summoned by recruitment office, from the meeting of the draft commission or from the recruitment office to be dispatched to the home base. Moreover, the recruit becomes criminally liable if by being absent he is trying to avoid the imposition of duty to undergo the draft service. Specifically, this can be evidenced by repeated unjustified absences from the draft meetings summoned by the recruitment office during the draft or several consecutive drafts, by absence from the recruitment office upon the expiration of the justifiable reason.

Unauthorized desertion of the assembly place by recruit before dispatch to the home base in order to evade the draft shall be qualified under part 1, Art. 328 of the Criminal Code of the Russian Federation. Fraudulent discharge from the military duty obtained through simulation of illness, self-maiming, forgery or other fraudulent activities shall qualify as evasion of the draft.

A citizen undergoing the alternative civilian service can be subject of the crime stipulated in part 2, Art. 328 of the Criminal Code of the Russian Federation. Citizens attain the status of individuals undergoing alternative civilian service once the alternative civilian service starts, and forfeit it once the alternative civilian service completes.

Moreover, the alternative civilian service starts on the day the citizen departs to the home base of alternative civilian service, indicated in the order of the recruitment office, and ends the day the employer terminates the f9ed-term employment agreement with the citizen when he is discharged from the alternative civilian service. A citizen evading the measures related to dispatch to the alternative civilian service (for example, in case of the unjustified absence from the recruitment office to receive the order, refusal to receive the order), is not a subject of the crime stipulated in part 2, Art 328 of the Criminal Code of the Russian Federation. Such individuals are subject to the draft according to the Federal Law On military duty and military service.

If during the court proceedings it will be established that by law an individual could not be dispatched for the alternative civilian service due to the grounds prohibiting the individual to be drafted for military service, the court shall acquit that individual for the lack of corpus delicti. In cases when during the period of evading the alternative civilian service the grounds for the discharge stipulated in Art. 23 of the Federal Law On alternative civilian service arise, the court shall release the individual from punishment due to the changed circumstances, subject to the conditions of Art. 80.1 of the Criminal Code of the Russian Federation.

When committing the crime foreseen in part 2, Art. 328 of the Criminal Code of the Russian Federation the individual’s objective is to completely evade the duty of alternative civilian service. If such objective of the individual was established, the actual duration of unlawful stay outside the home base (a day, week, month etc.) is immaterial for qualifying the offence. Evading alternative civilian service for a certain period (for example, a month), upon which expiry the individual returns to the home base of the alternative civilian service does not constitute corpus delicti stipulated in part 2, Art. 328 of the Criminal Code of the Russian Federation. In this case the individual can be charged with disciplinary liability for violating the labor laws. Further it should be noted, that the term of the alternative civilian service does not include the time periods provided for in item 5, Art. 5 of the Federal Law On alternative civilian service (specifically, absences, i.e. unjustified absence from the workplace for over 4 consecutive hours in the course of one work day).

The crimes stipulated in part 2 Art. 328 of the Criminal Code of the Russian Federation, considering the specifics of professional activity of the citizens undergoing the alternative civilian service, include specifically, the unjustified absence from the home base of the alternative civilian service within the specified time, unauthorized desertion of the work place (workstation), unjustified failure to attend the work, refusal to carry out the duties of alternative civilian service, including refusal to execute a fied-term employment agreement, pre-term dismissal from alternative civilian service by false pretences.

Actions of an individual undergoing the alternative civilian service forging an official document and using it to evade the draft for military service or to be dismissed from the alternative civilian service, shall be qualified as an aggregate of crimes stipulated in part 1 or part 2, Art. 328 of the Criminal Code of the Russian Federation or in part 1, Art. 327 of the Criminal Code of the Russian Federation respectively. If specified individuals knowingly used a forged official document, their actions shall be qualified under part 1 or part 2, Art. 328 of the Criminal Code, and part 3, Art. 327 of the Criminal Code of the Russian Federation.

A person, by request of a recruit or an individual undergoing the alternative civilian service, forging an official document for purposes of evading the draft for military service or dismissal from the alternative civilian service, shall be liable under part 5, Art. 33, part 1 or part 2, Art. 328, and part 1, Art. 327 of the Criminal Code of the Russian Federation.

Evasion of military duties committed by a service member through falsification of documents authorizing temporary or complete release from military duties, is covered in its entirety in Art. 339 of the Criminal Code of the Russian Federation.

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