Law on mobilization: prisoners and convicted persons

People's deputies, officials and the General Staff continue to discuss amendments to the scandalous bill on mobilization. Among the controversial norms is, in particular, the provision of the opportunity for prisoners and convicted persons to voluntarily join the ranks of the army. The idea is supported by the Ministry of Justice, where appropriate changes to the legislation have already been developed. But the Commander-in-Chief of the Armed Forces of Ukraine, Valery Zaluzhny, is categorically against it.

What are the arguments for and against the mobilization of prisoners and how they can be useful for the army without leaving places of deprivation of liberty, Svetlana Gudkova, a journalist for the Zaborona publication, looked together with experts.

Law on conscription and military service

According to the law “On Military Duty and Military Service,” citizens sentenced to imprisonment are removed from military registration and are not reinstated after serving their sentence. Thus, they cannot be drafted into the army by mobilization or voluntarily under contract.

Those sentenced to a suspended sentence or other types of punishment not related to imprisonment remain liable for military service and are subject to mobilization on a general basis.

In December 2022, amendments were also made to the Criminal Procedural Code of Ukraine, which give the right to mobilization to those who are under investigation and held in a pre-trial detention center. To change the preventive measure for military service, the suspect must write a corresponding petition to the prosecutor, who will send him to court. If the decision is positive, the suspect must appear at the Territorial Center for Recruitment and Social Support (TCC and SP) within 24 hours after release.

However, not all defendants will have this right. An exception is made for citizens suspected of committing crimes against the foundations of the national security of Ukraine, as well as those accused of violence, corruption of minors, organized crime, propaganda of war, high treason, and the like.

Law on mobilization: prisoners and convicted persons

The new bill proposes to allow prisoners and convicted persons to voluntarily mobilize. Exceptions apply to those who were convicted of committing crimes against the foundations of the national security of Ukraine, for war crimes under Articles 401-414 and 426-433, for propaganda of war, treason, genocide, etc.

Deputy Minister of Justice Elena Vysotskaya says that the department has already developed appropriate changes to the law, which are being considered in committees of the Verkhovna Rada. New mobilization rules may be adopted in January-February 2024, but this does not yet guarantee a solution to the issue.

“Perhaps now, in some limited way, changes will be made, for example, in relation to convicts who were already released from prison several years ago or were convicted of certain crimes. Although our position is that it does not matter for what crimes. If the sentence has been served and the person is free, we should all treat him like an ordinary person,” the official said.

This idea is supported by Parliamentary Commissioner for Human Rights Dmitry Lubinets. He proposes to provide such an opportunity to prisoners, subject to agreement with the commander of the relevant unit to which he wants to mobilize. At the same time, the commissioner admitted that the commander-in-chief of the Armed Forces of Ukraine Valery Zaluzhny “spoke out categorically against it.”

Previously convicted at the front: military experience

Lawyer, deputy of the Verkhovna Rada of Ukraine of the VIII convocation (2014-2019) and officer of the Armed Forces of Ukraine Igor Lapin says that he does not understand at all why former convicts are deprived of the obligation to defend their state if they have served their sentence. Moreover, many of them began to defend Ukraine from the beginning of a full-scale war.

“They asked me: would you like to have convicts in your unit? So I had them. Nobody paid attention to this on February 24th. The man simply came to the TCC, he was mobilized and sent to fight without any checks. I’ll even say that in many moments it’s easier with them. Many of them live by “concepts”: if he gave his word, he will keep it. And if you are a competent commander, have the right approach to soldiers and value them, they will respect you and follow orders,” Lapin tells Zaborona about his experience.

The officer also sees no problem in the voluntary mobilization of prisoners, even if the offender is serving a sentence for a serious crime. True, those who are imprisoned for especially serious crimes, as well as rapists, should not receive such a right.

“The severity of a crime is determined by the extent of its punishment. Non-serious - up to 5 years in prison, serious - from 5 to 10 years. Anything higher is a particularly serious crime. So, according to the punishment, the classification of “serious crime” includes charges of manslaughter, for example, when committing a fatal accident, or in excess of self-defense. Even for selling weed the sentence is from 6 to 10 years, which is considered a serious crime. Yes, a person could have stumbled, broken the law, he is punished. But if he wants to go defend the country, why can’t he be allowed to do so?” - says the officer.

It is necessary, according to the military lawyer, to reconsider the cases of those convicted of war crimes, for example, for failure to comply with orders. “I know that the lion’s share of such people want to fight, but they did not want to carry out the openly criminal orders of their commanders. When they are sent to defend an object without proper weapons, and tanks are driving at them, then the military man will have only a few options: either be wound up on a tank track or be captured, or leave his positions and go to a Ukrainian prison and save his life,” explains Igor Lapin.

The law should also spell out the motivation and punishment for prisoners and convicted persons in case of repeated violation of the law. Lapin suggests counting a day in war as two days in prison: “But it should not be that the convicted person has a year left to serve, he wins six months and is released. No: he must serve the entire term established by law.”

But if the war ends earlier, such people must be given the opportunity to petition for release from further serving their sentence based on the corresponding report from the commander and a court decision. And vice versa: if a prisoner voluntarily mobilizes and breaks the law again, for example, disobeying an order or robbing a store on the way to the front line, the remainder of the prison term is automatically doubled. But in any case, the last word should be with the unit commander, adds the Ukrainian Armed Forces officer.

Prisoners can be useful for the army not only at the front

The former head of the penitentiary service, lawyer Sergei Starenky, also believes that former and suspended prisoners should register with the military and fulfill their duties to protect the state. According to his estimates, there are 50 thousand people in Ukraine who could theoretically strengthen the Ukrainian army.

Another issue concerns prisoners who are serving their sentences in prison. “I support giving such individuals the right to mobilize. But each such case must be considered individually, with a mandatory study of the convicted person’s case, taking into account the opinion of the colony administration. Because this is one of the ways that can be used by not very conscientious convicts to escape or commit further illegal actions,” says the expert.

But despite this, the mobilization of prisoners will in no way solve the problem of recruiting the Armed Forces. According to the former head of the penitentiary service, currently in Ukraine about 20-23 thousand people are in pre-trial detention centers, and about 30 thousand are serving sentences in prisons.

“Of these, two-thirds were previously convicted, 2-3 thousand are women and minors, another 2 thousand were sentenced to life imprisonment. So, there are about 10 thousand men who could theoretically be mobilized. And if we are talking about voluntary service, then it is 3-5 thousand,” explains the expert.

And 30 thousand prisoners is quite a large resource that the country could use to improve its defense capability, the expert believes. “Convicted persons who are theoretically eligible for mobilization, but for some reason cannot be recruited directly into the Armed Forces, may be involved by the state in performing defense work. These works will be mandatory if the state determines that they need to be done. This could be the production of some metal structures (for example, hedgehogs) and concrete pyramids, weaving camouflage nets and much more,” noted Sergei Starenky.