Who can be called a draft dodger in accordance with current legislation? What responsibility comes for avoiding receiving a mobilization summons and a summons to clarify data? Why is it possible to mobilize people with a criminal record for a minor crime, but not those against whom criminal proceedings have been initiated? What changes await the process of recruiting troops if a new mobilization bill is adopted?
Who can be called a draft dodger?
Is it clearly stated in law who a draft dodger is? After all, there is an opinion that everyone who is not at the front is a draft dodger.
At the legislative level, liability is provided for evading mobilization. This is article 336 of the Criminal Code of Ukraine. A person is considered to have evaded mobilization when there is a court verdict that has entered into force. Then, roughly speaking, one can call a person a draft dodger.
Why a person is not at the front is another question, including deferments. After all, it may be that a person has legal grounds for a deferment, but it also happens that a person actually evades military registration and ignores subpoenas.
“If a person has been convicted of a minor crime, he can join the ranks of the Armed Forces of Ukraine”
First Deputy Chairman of the National Police Maxim Tsutskiridze said that those liable for military service who received suspended sentences for evading military service will be subject to mobilization in the future. These suspended sentences, what are they for?
The sanction of Article 336 of the Criminal Code provides for punishment in the form of imprisonment from 3 to 5 years. This is not a serious crime, and if a person is convicted of a minor crime, then he can join the ranks of the Armed Forces of Ukraine. This is exactly what was meant in your quote.
If a person commits a crime for the first time, this is taken into account by the court. His psychological state and family circumstances are also taken into account. Roughly speaking, a small child was born, the parents were elderly, difficult life circumstances arose, that at that moment he was scared, decided that he was afraid for himself or his family. The judge may take this into account as a mitigating circumstance or a set of mitigating circumstances. It's always individual.
However, there is no guarantee that a person who commits such a crime will receive a suspended sentence. There are cases when a judge in a sentence determines the actual term of serving a sentence; there are also sentences of 5 years in prison, the maximum limit. Therefore, when a person commits such an offense, he must understand its consequences.
In addition, if a person received a suspended sentence for evading mobilization, he is again given a summons and he again evades. This will already be a repetition, but the person has already been convicted and there are no guarantees that the person will receive probation again. The person may receive a real sentence.
How to distinguish between administrative and criminal liability?
If a person was not registered, he was given a summons to the military registration and enlistment office and he did not go and did not pass the military medical commission. What kind of responsibility is this?
For now this is an administrative responsibility. How to distinguish between administrative and criminal liability? If a person is not registered with the military, then it is impossible to prosecute him for evading mobilization in the context of criminal liability. The person passed the IHC, received a mobilization summons to appear with his belongings, and when he did not appear according to it, this fact was recorded, then he was given a suspicion, an indictment and materials were sent to court.
Another situation is when a person does not receive a summons to clarify the data under signature. This often happens with internally displaced persons when it is impossible to determine exactly where they are. Or they hand the summons to relatives or leave it at doors or fences. It is improper service of a subpoena when there is no evidence that the person received it. However, we are not talking about a mobilization agenda, which almost always comes with a signature.
But for clarification of data, this may be an administrative liability, since we are talking about a violation of military registration rules. There will be administrative liability and a fine of 1,700 hryvnia.
However, there is a nuisance: even if you are not brought to administrative responsibility, but one summons, a second, a third, even if you did not sign for them, TCC employees can submit a report to the police about your administrative case in order to draw up an administrative protocol. At the everyday level they talk about this as “putting them on the wanted list.” We are not talking about that search, but about the decision on the administrative drive. If you want to find out about such a “beacon”, you can submit a request about yourself to the relevant police department or make a lawyer’s request. Then you will know whether the police are looking for you to bring you to the TCC and draw up a report on an administrative violation.
Criminal proceedings are grounds for not mobilizing a person
In Ukraine, about 9,400 proceedings for evading mobilization are being investigated, of which 2,600 have been sent to court. Can a person against whom such proceedings are pending be mobilized?
During a criminal investigation, when there is a pre-trial or judicial investigation, he cannot be mobilized. Any criminal process is a reason for a person not to be mobilized, but I know many cases when criminal cases are opened, but indictments have not yet been served, and such people go to serve and are mobilized. It's a question of whether you want to be mobilized at the moment or not.
In addition, not all open criminal proceedings will result in an indictment and be sent to court. There was a case in our practice when a person had grounds for a deferment because the person’s father had a Group I disability and needed constant outside care. The TCC ignored this basis for the delay and still gave the person a mobilization order. The man sent a message by mail that he could not appear because he was caring for his father, and he even had a certificate from social security stating that he was caring for him. This was ignored.
We promptly filed a statement of claim with the administrative court to declare the TCC’s mobilization actions illegal; at the same time, the TCC filed a statement that this person liable for military service had committed a crime, that he did not appear when summoned. Criminal proceedings were opened. Our client also filed a police report against the head of the TCC for arbitrariness. Therefore, the police received two statements - both from TKTs and from the man himself. Recently there was a decision by which the court declared the TCC’s actions illegal and ordered a deferment. In this case, the criminal proceedings will most likely be closed due to the lack of corpus delicti.
“Measures against evaders are reminiscent of those applied to alimony defaulters”
Let's talk more about the new mobilization bill. In your opinion, will the issue of increased liability be resolved there if a person violates the rules of being registered?
There are certain cases when a person must register for military service in a particular territorial unit. This applies to all students: if he studies and moves into a dormitory, then the university will definitely submit lists of these students to the TCC and the student will be registered with the military at the place of study. If a person goes to work, the employer must inform the local TCC that such a person is at work. Therefore, the issue of registration is technical.
But the question of a person who evades accounting when he received a summons to clarify data, but did not appear, is a different question. This is administrative responsibility.
The version of the mobilization project that is now proposed strengthens the use of procedural measures. This is reminiscent of evading the payment of alimony, because then sanctions can be applied: a ban on traveling abroad, deprivation of the special right to own a weapon or drive a car, or restrict the use of property. It's not that critical.
