ST 328 of the Criminal Code of the Russian Federation.
1. Evasion of conscription for military service in the absence of legal grounds for exemption from this service is punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to eighteen months, or by forced labor for a term of up to two years, or arrest for a term of up to six months, or imprisonment for a term of up to two years.
2. Evasion of alternative civil service by persons exempt from military service is punishable by a fine in the amount of up to eighty thousand rubles or in the amount of the wages or other income of the convicted person for a period of up to six months, or by compulsory labor for a period of up to four hundred eighty hours, or arrest for up to six months.
Commentary to Art. 328 Criminal Code
1. The objective side of the two crimes provided for in the article is expressed in inaction.
2. Legal grounds for exemption from conscription for military service are: recognition of a person as unfit or partially fit for military service due to health reasons; the presence of an unexpunged or outstanding conviction for committing a crime, etc.
3. Evasion of conscription for military service (Part 1) is formed by: a) the conscript’s refusal to receive a summons from the military commissariat or to send a draft commission against receipt; b) his failure to appear at mandatory events related to conscription for military service (for medical examination and examination, at a meeting of the draft commission, at the gathering place for sending to the place of military service); c) unauthorized leaving by a conscript of a collection point before being sent to the place of military service, with proper notification of the conscript and the absence of legal grounds for exemption from service; d) a conscript fraudulently obtains exemption from military service as a result of feigning illness, causing himself any harm (self-mutilation), forgery of documents or other deception.
A necessary condition for liability for failure to appear on time for events related to conscription is also the absence of valid reasons. Valid reasons in these cases, provided they are documented, include: illness or injury of the conscript associated with loss of ability to work; the serious health condition of his loved ones (father, mother, wife, son, daughter, etc.), participation in the funeral of these persons; an obstacle arising as a result of force majeure, circumstances beyond the control of the citizen; other reasons recognized as valid by the draft commission or court.
4. Evasion from performing alternative civil service (Part 2) is possible from the moment it begins - the day the citizen leaves for the place of service specified in the order of the military commissariat, until the end - the day the employer terminates the employment contract with the citizen upon his dismissal from service. The objective side of the crime is formed, in particular, by failure to appear without good reason at the place of alternative civil service within the time period specified in the order, refusal to enter into a fixed-term employment contract, early dismissal from alternative civil service by deception, unauthorized abandonment of the place of work (workplace).
5. Crimes provided for in Art. 328 of the Criminal Code are continuing. If a person fails to confess or is not detained, they end due to the disappearance of obligations for conscription into military service or alternative civilian service. This moment is considered to be when a person reaches the age of 27 years, after which the duties of military service cannot be assigned to him, or the age that is the limit for being in alternative civil service (28 years 9 months or 28 years 6 months, depending on its duration). After reaching the age of 27, persons who committed this crime before the specified age may be subject to criminal prosecution for evading conscription for military service, provided that the statute of limitations for bringing them to criminal responsibility has not expired.
6. The subjective side of the crime provided for in Part 1 is characterized by the goal of avoiding the imposition of the obligation to perform military service upon conscription. It does not matter whether the conscript was only avoiding the next conscription for military service or had the goal of completely avoiding conscription.
When committing a crime under Part 2, the person has the goal of completely evading the duties of the alternative civil service. Evasion from performing alternative civil service for a certain period (for example, one month), after which the person returns to the place of performing alternative civil service, does not constitute a crime. In this case, the person may be subject to disciplinary action.
7. The subjects of the crime provided for in Part 1 are conscripts - male citizens who have reached the age of 18, who are or are required to be registered with the military and who are not in the reserve, subject to conscription for military service in accordance with the procedure established by law. The subjects in Part 2 are persons obliged and undergoing alternative civil service, i.e. special subjects.
Judicial practice: sentences and punishment under Art. 339 of the Criminal Code of the Russian Federation
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 27, 2002 N 29 ON JUDICIAL PRACTICE IN CASES OF THEFT,...
- Decision of the Supreme Court: Resolution No. 310P13 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 310-P13 Moscow January 23, 2014 Presidium of the Supreme Court of the Russian Federation...
- Decision of the Supreme Court: Determination N 203-APU17-21... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 203-APU17-21 APPEAL DECISION Moscow August 31, 2022 Judicial Collegium for Military Personnel of the Supreme...
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENARY OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION of November 15, 2016 N 48 ON THE PRACTICE OF APPLICATION BY COURTS OF LEGISLATION GOVERNING FEATURES...
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated June 25, 2022 N 18 ON JUDICIAL PRACTICE IN CASES OF CRIMES,...
- Resolution of the Plenum of the Supreme Court of the Russian Federation dated... PLENAUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 17, 2022 N 43 ON SOME ISSUES OF JUDICIAL PRACTICE IN CASES...
- Ruling of the ECtHR dated 02/14/2017 EUROPEAN COURT OF HUMAN RIGHTS THIRD SECTION CASE “MASLOVA VS. RUSSIAN FEDERATION” (Complaint No. 15980/12) JUDGMENT…
- Resolution of the Presidium of the Supreme Court of the Russian Federation dated... PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION DECISION dated December 5, 2018 N 126-P18 ON RESUMING PROCEEDINGS IN THE CASE DUE TO NEW...
- Decision of the Supreme Court: Resolution No. 156P17 dated... DECISION OF THE PRESIDIUM OF THE SUPREME COURT OF THE RUSSIAN FEDERATION on the resumption of proceedings in the case due to new circumstances Case No. 156-Ш7 Moscow 27...
- Judicial Collegium for Criminal Cases, appeal:... THE SUPREME COURT OF THE RUSSIAN FEDERATION Case No. 72-APU 17-21 APPEAL DECISION Moscow October 04, 2022 Judicial Collegium for Criminal Cases...
Second commentary to Art. 328 of the Criminal Code of the Russian Federation
1. Part 1 formulates the elements of evasion of conscription for military service in the absence of legal grounds for exemption from this service. The grounds and procedure for conscription and military service are regulated by the legislation of the Russian Federation: Federal Law of the Russian Federation dated 05/31/1996 “On Defense”, Federal Law of the Russian Federation dated 05/27/1998 “On the Status of Military Personnel”, Federal Law of the Russian Federation dated 03/28/1998 “On Military Duty and Military Service” "
2. Objective signs of evasion of conscription for military service: failure to appear at the recruiting station on time without a valid reason. Article 7 of the Federal Law “On Military Duty and Military Service” defines a list of reasons why failure to appear at a recruiting station is valid (illness, injury, serious condition of a close relative, obstacle of a natural nature, etc.). Evasion of training or verification fees or military registration is an administrative offense and does not entail criminal liability.
The crime is considered completed from the moment of failure to appear at the recruiting station within the prescribed period.
3. The subjective side of this crime is characterized by direct intent.
4. The subject of evasion of conscription for military service can only be a person who has reached the age of 18 and is obliged to perform military service in accordance with Article 22 of the Federal Law “On Military Duty and Military Service”.
5. Persons exempt from conscription for military service undergo alternative civilian service. Avoidance of alternative civil service is provided for in Part 2.
The objective side of the crime provided for in Part 2 of Art. 328 of the Criminal Code, consists of evading the duties imposed by the alternative civil service. These responsibilities are determined by Article 21 of the Federal Law of July 25, 2002 “On Alternative Civil Service”: failure to appear at the place of duty, refusal to enter into a fixed-term employment contract and performance of labor duties, unauthorized abandonment of the locality in which the organization and the person’s workplace are located undergoing alternative civilian service in order to avoid completing it.
Absenteeism, dishonesty in the performance of duties and other violations of labor discipline do not entail criminal liability.
6. The subjective side of this crime is characterized by direct intent.
7. Subject - a person who has reached the age of 18 years, for whom military service has been legally replaced by an alternative civilian one.
Consequences
Part 1 of Article 328 of the Criminal Code stipulates criminal punishment for the above actions, unless there are reasons mitigating or canceling the situation:
- fine - up to 200,000 rubles;
- arrest from 90 to 180 days;
- imprisonment for up to 24 months.
Criminal liability may also be applied to persons who interfere with the delivery of a summons or the search for a conscript. But in practice, this is more difficult to prove than a conscript’s evasion from military service.
Administrative responsibility
All male citizens from the age of 17 are registered with the military at their place of residence. Conscripts, in accordance with the law, are required to inform the military registration and enlistment office about changes regarding their place of residence and other information that may affect their conscription into the army.
These include:
- failure to notify responsible persons at the military registration and enlistment office about a change of residence for a period of more than 3 months;
- lack of notification from the conscript that he will be outside the Russian Federation for more than 6 months;
- failure to appear at the military registration and enlistment office for military registration or deregistration;
- failure to inform responsible persons at the military registration and enlistment office about a change in marital status, place of work or study.
The actions listed above entail administrative liability for the conscript in accordance with Article 21.5 of the Code of Administrative Offenses of the Russian Federation. Failure to appear at a medical commission in the presence of a summons is regulated by Art. 21.6 Code of Administrative Offences. The penalty for these offenses is a fine of 100 to 500 rubles. This applies only to cases where the violations were of a one-time nature; if the said violations were serious, then the conscript may be held liable for evasion under the Criminal Code of the Russian Federation.
Note! Compliance with penalties under the article of the Criminal Code of the Russian Federation for evasion of military service does not exempt a citizen from conscription into the ranks of the RF Armed Forces or, depending on the specific situation, from alternative service. According to Art. 23 (clause 3b) of Federal Law No. 53-FZ, a citizen is subject to conscription after the expungement of a criminal record, if at that time he does not exceed the conscription age.
Mental illness
Self-harm often occurs among teenagers and women who are not trying to avoid something.
And they don't even try to commit suicide. For them, self-harm becomes a way of expressing mental pain and psychological trauma, gradually developing into a kind of addiction. Thus, by inflicting damage to themselves, “self-mutilators” try to cope with their emotions, to get out of stress or emotional numbness. According to studies, such “self-mutilators” often become people who experienced acts of sexual or physical abuse in childhood. However, there are cases where people with certain biochemical changes in the brain were predisposed to self-harm.
The passion for self-harm is not a bad habit, but a disease. Therefore, to get rid of the urge to harm yourself, using the usual techniques to combat bad habits will not work.
To help a person prone to self-harm, he must be persuaded to see a psychologist or psychiatrist. If the cause of self-harm is mental trauma experienced, doctors try to remove its consequences. They prescribe a course of treatment with antidepressants and teach them alternative methods of dealing with stress and managing their emotions. Partial hospitalization, cognitive and behavioral therapy, interpersonal therapy, family therapy with the involvement of the patient’s relatives bring good results.
Legal concept of evasion of service
Evasion from military service is an intentional action aimed at avoiding being drafted into the ranks of the Russian Armed Forces. These include:
- failure to appear at the medical commission;
- failure to appear when called by the draft commission;
- failure to appear at the point of departure to the place of duty.
These actions can be recognized as criminal, in accordance with Part 4 of Art. 31 of Federal Law (FZ) No. 53-FZ of March 28, 1998, subject to 2 conditions:
- lack of valid reasons;
- lack of notification to the conscript in the form of a summons.
It is worth considering that if a summons was not served on a citizen due to the fact that he is hiding and deliberately does not live at the place of registration, then he is subject to administrative punishment.
