Suspended sentence and fine cancellation: how "draft dodgers" are punished in the Donetsk oblast
As of January 4, 2024, the National Police have initiated approximately 9,000 criminal proceedings related to evasion of mobilization, but only a third have reached the court.
"Currently, the National Police have around 9,000 criminal cases (related to evasion of mobilization), and 2,600 of these cases have already been sent to court. This falls under Article 336 of the Ukrainian Criminal Code", - stated Interior Minister Ihor Klymenko.
He noted that initially, a protocol for an administrative offense is drawn up by the Territorial Centre of Recruitment and Social Support (TCRSS), and if the "evader" begins changing their place of residence and using other means to evade mobilization, the TCRSS informs the police, who investigate these facts within the framework of criminal proceedings.
According to Serhiy Kaluhin, the head of the Pechersk TCRSS, the punishment in this case depends on the committed offense.
For instance, if a conscript evades the summons to verify military registration data, administrative responsibility (fine) is currently imposed on them.
If the conscript has undergone a medical examination and has been found fit for service but avoids subsequent summons to report to a military unit, criminal responsibility ensues. This falls under Article 336 of the Ukrainian Criminal Code, "Evasion of the Call to Military Service During Mobilization for a Special Period", according to which the "evader" is punished with imprisonment for a term of 3 to 5 years. However, such severe punishment is not always imposed.
In most cases, a three-year prison sentence is given. Subsequently, based on Article 75 of the Ukrainian Criminal Code, the accused is released from serving the sentence with a probationary period of 1-2 years. Additionally, obligations specified in Article 76 of the Ukrainian Criminal Code are imposed on them:
- Periodically appear for registration with the authorized body;
- Report changes in residence, work, or study to the authorized body;
- Not leave Ukraine without the consent of the authorized body.
Evasion of mobilization is not considered a serious crime, so courts often show leniency and replace the actual term with a suspended sentence.
OstroV decided to investigate how courts in the Donetsk oblast penalize evasion of mobilization.
Real cases
In the Unified State Register of Judicial Decisions, fewer than 30 verdicts were found under Article 336 of the Criminal Code, "Evasion of the Call to Military Service During Mobilization for a Special Period", issued by the courts of the Donetsk oblast since the beginning of the full-scale invasion. Throughout Ukraine, there were 1780 such verdicts.
Notably, among all the verdicts issued by the courts of the Donetsk oblast, there is not a single one with an actual prison term – all of them were replaced with probation (suspended sentence).
Most verdicts relate to cases where conscripts underwent a military medical examination, were deemed fit for service, but either refused the "combat" summons or did not appear for it. Typically, in court the accused mention fear or refer to their religious beliefs.
In early January 2023, a resident of the Donetsk oblast, after the announcement of a general mobilization, underwent a military medical examination, which declared him fit for military service. On the same day, he received a "combat" summons. However, he did not appear on the appointed day.
During the court hearing, the accused, upon questioning, fully admitted his guilt and noted that he had not reported to the TCRSS until now because he was scared. Additionally, his partner was ill and needed his assistance.
The Kostiantynivka District Court of the Donetsk oblast sentenced him to three years of imprisonment, which was replaced with a two-year probationary period.
Another noteworthy case occurred in January 2023 when a man, being a conscript and fit for military service, refused to perform service during mobilization, citing his religious beliefs.
In the court hearing, he admitted his guilt, noting that he had not undergone compulsory service, lacking combat experience. In December 2022, he intended to find employment at Krasnolymanske LLC, for which he needed to provide information about his military registration, so he arrived at the TCRSS, where he underwent a medical examination and was deemed fit for military service.
At that time, the man was informed about the upcoming call to the military enlistment office for mobilization to a military unit.
"Not being prepared to fight and having no grounds for deferment or exemption from military service, he wrote a statement refusing military service due to his religious beliefs, for which later a criminal case was initiated against him. He explains that he fully realizes his guilt, understands that he evaded the call without valid reasons, and sincerely repents. He requested the court to consider that he has two minor children under his care, and his family needs his support", - as stated in the decision of the Dymytrivsky City Court (Myrnohrad, the Donetsk oblast).
As a result, the court found him guilty and sentenced him to three years of imprisonment, which was replaced with a one-year suspended sentence.
Cases involving partially fit conscripts also reach the court.
For instance, a resident of the Donetsk oblast, declared unfit for military service in peacetime and partially fit during wartime due to second-degree flat feet with arthritic changes, was exempted from the draft for compulsory military service according to the 2009 decision. He was transferred to the reserve with enrollment in the military registration of conscripts.
After the full-scale invasion, he was again sent for a military medical examination, where he was declared partially fit for military service during wartime. Later, he was handed a new summons "for mobilization and subsequent military service in the Armed Forces of Ukraine". The man refused to accept the summons, stating this fact in writing. As a result, the court found him guilty and sentenced him to three years of imprisonment, which was replaced with a one-year suspended sentence.
Another noteworthy case occurred in the summer of 2023 with a driver from Donbas Transport Company, which operates in the front-line territory but has been unable to obtain approval for mobilization reservation lists for several months.
The man explained in court that he works as a driver for a critical infrastructure enterprise, transporting ore to serve the Kurakhove Ore Enrichment Plant, which is effectively located on the front line of hostilities. Many employees left the enterprise due to the danger. In early August 2023, his immediate supervisor ordered all employees to undergo a medical examination at the military enlistment office. He was deemed fit for military service. There, he was handed a summons to report the next day at the TCRSS, where they issued a "combat summons" that he refused on the spot (his wife was away, and he was with his underage daughter).
The defendant admitted that "he is healthy, not reserved, but if he stops working, it will be detrimental to critical infrastructure due to a severe staff shortage at the enterprise. One vehicle requires two workers, but he works alone. Instead of 20 drivers, only 10 are working. The enterprise submitted reservation lists in the summer, but this issue has not been resolved so far. Probably, if he had received a summons, he would have gone to serve. He sincerely regrets what he has done", - as stated in the decision of the Dymytrivsky City Court (Myrnohrad, the Donetsk oblast).
The court took into account that the man had no previous criminal record, absence of negative character references, and his underage daughter dependent on him.
The court found him guilty and sentenced him to three years of imprisonment, which was replaced with a two-year suspended sentence.
The courts in the Donetsk oblast are so lenient in decisions regarding violations of mobilization and military registration that one can find cases where they overturn fines imposed by draft boards from other regions.
For instance, in November 2023, a resident of the Donetsk oblast brought his own car with cargo to the Chernivtsi oblast. While waiting in the queue for unloading, an employee of the Chernivtsi TCRSS approached him, asked to present his identification documents. Subsequently, the TCRSS ordered the man to follow him to the sixth division of the Chernivtsi TCRSS for a medical examination.
The man, in turn, explained that he could not leave the car with cargo waiting in the unloading queue. Additionally, he stated that he was registered within the Sloviansk TCRSS in the Donetsk oblast, and, therefore, should undergo a medical examination there.
Despite this explanation, TCRSS officers forcibly took the man for the medical examination in Chernivtsi.
"While in the examination facility, the plaintiff refused to undergo the medical examination and noted that he could obtain a referral for a medical examination or a summons for a call", - the court decision states.
Subsequently, an administrative protocol was drawn up against the man under Part 2 of Article 210 of the Code of Ukraine on Administrative Offenses. Later, by registered mail, he received a resolution on administrative liability, and a fine of 850 hryvnias was imposed on him for refusing to undergo the medical examination.
However, the man disagreed with this decision and tried to challenge it in the Sloviansk City Court of the Donetsk oblast. Following the review of the case, the court sided with the man, annulled the decision of the Chernivtsi TCRSS regarding the administrative offense, and closed the case.
While the courts in the Donetsk oblast issue relatively lenient sentences with suspended terms, in other regions, evasion of mobilization can result in an actual prison sentence.
For instance, in the Zhytomyr oblast, a native of Donetsk, working as a wire harness assembler, was sentenced to three years in prison for evading mobilization.
On September 1, 2022, the man underwent a medical examination and was found fit for the service, which he did not object to. However, ten days later, he did not report to the military enlistment office for deployment to the Armed Forces of Ukraine.
Despite the man fully admitting his guilt, the Novohrad-Volynskyi Court of the Zhytomyr oblast "did not consider the defendant's repentance as a mitigating circumstance". This is despite the prosecution insisting that the defendant's sincere repentance, as stated in the indictment, could be a basis for a suspended sentence.
"The court deems the prosecution's reference to the defendant's sincere repentance, as a mitigating circumstance, unjustified, as there are no real signs of repentance in his actions", - the court's decision stated.
The appellate court of the Zhytomyr oblast upheld the first-instance court's verdict without changes.
In February 2023, in Volyn, a native of Soledar (the Donetsk oblast) was sentenced to three years for evading mobilization. The man had previously passed a medical examination and was found fit, but he ignored the subsequent summons.
In court, he explained that he did not report for military service during mobilization because he had been previously injured in Soledar and had lost all his property. Despite the defendant admitting his guilt and expressing remorse, and the pre-trial report from the supervisory authority suggesting the possibility of a suspended sentence, the court still imposed a three-year prison sentence.
It should be noted that having a conviction under Article 336 of the Criminal Code of Ukraine does not prevent further mobilization.
"The Ministry of Defense emphasized that if a citizen was previously sentenced to imprisonment for committing a non-serious crime, including being released from serving the sentence, and is in the military reserve and is not exempted in the established manner for the mobilization period, such a citizen is subject to military service during mobilization", - writes the Judicial and Legal Gazette.
Stringency
At the end of last year, along with the high-profile draft law on mobilization reinforcement, the Cabinet of Ministers submitted draft law No. 10379 to the Verkhovna Rada "On Amendments to the Code of Ukraine on Administrative Offenses and the Criminal Code of Ukraine Regarding Strengthening Responsibility for Military Offenses".
The government proposes to significantly increase fines for violators of military registration and mobilization rules.
In the Code of Ukraine on Administrative Offenses, the following norms are proposed to be updated:
1. Violation of military registration rules by conscripts, military personnel, reservists - entails a fine ranging from 8,500 to 17,000 hryvnias (currently from 510 to 8,500 hryvnias).
2. For violations of legislation on defense, military duty, military service, mobilization training, and mobilization, a fine of 34,000 to 85,000 hryvnias is introduced, and in special conditions - 153,000 to 204,000 hryvnias.
3. Individuals who violate legislation on defense, military duty, military service, military registration rules, mobilization training, and mobilization during a special period may be detained for up to three hours to draw up a protocol, and, if necessary, to establish identity and/or clarify the circumstances of the offense - up to three days.
However, the most severe innovation is that evasion of conscription for military service during mobilization, including refusal to undergo a medical examination, is proposed to be punished by imprisonment for a term of 3 to 5 years. It is worth noting that currently, refusal of a medical examination is punishable by a fine, and criminal liability arises only after passing the medical examination and receiving a "combat" summons.
Despite the government withdrawing the mobilization draft law, which they decided to revise, this document on increased fines and harsher penalties has not been withdrawn. The relevant committee of the Verkhovna Rada on law enforcement has not yet begun its consideration, so it is too early to judge how it will be adopted.
OstroV’s source in the monomajority noted that many deputies criticized the draft law behind the scenes, so changes are likely awaiting it.
"Especially the provision on a three-day detention raised concerns. The amount of fines really needs to be increased, no one disputes that, but the other provisions are likely to be either canceled or adjusted. The draft law is not in the spotlight yet; all attention is focused on the main law on mobilization. When it is voted on, attention will turn to fines and detentions. It won't happen before spring for sure", - the source noted.
By Andriy Andrieyev, OstroV