The Constitutional Court will determine at what age one can retire from the army during the period of mobilization

The rules regulating the age limit for military service during the period of mobilization will become the subject of consideration in the Constitutional Court of the Russian Federation on the initiative of the 224th Garrison Military Court in St. Petersburg. The trial concerns the fate of 50-year-old serviceman Andrei Kutsenko, who entered into a six-month contract and now cannot break it: the army leadership refers to the law that came into force in June 2023, according to which the service age limit was raised to 65–70 years. The contract worker’s lawyers, pointing out that the contract was concluded earlier, remind that the law does not have retroactive effect.

49-year-old Andrei Kutsenko signed a six-year contract for military service on September 7, 2022, two weeks before the presidential decree announcing partial mobilization, said his lawyers Alexander Peredruk and Oleg Fazulyanov. At the time of the conclusion of the contract, the norm was in force according to which a serviceman could serve for up to 50 years. After the announcement of partial mobilization, the contract was automatically extended. In June 2023, Federal Law No. 269 came into force, according to which the age limit for contract soldiers during the mobilization period was raised: to 70 years for senior officers and to 65 years for “those with a different military rank.” In August 2023, Mr. Kutsenko turned 50 years old; he submitted a report to the commander about his dismissal, but was refused with reference to 269-FZ. Then the serviceman went to court.

“The literal interpretation of the law indicates that the norm should not affect military personnel who entered into a contract before June 24, 2023,” believes Mr. Fazulyanov, noting that the law does not have retroactive effect. At the same time, the immediate army leadership of Andrei Kutsenko and the Joint Strategic Command of the Southern Military District (who are defendants in the lawsuit) “interpret the law retroactively,” said lawyer Peredruk: “If we agree with this position, our client must serve 16 years instead of six months, which was not his intention when he signed the document. In this regard, we raised before the court the question of the compliance of the law with the Constitution of the Russian Federation.”

On December 18, the 224th Garrison Military Court in St. Petersburg granted the plaintiff’s request, suspended the consideration of the case and sent a request about the constitutionality of the provisions of Art. 4 of Federal Law No. 269 in the Constitutional Court, as evidenced by the corresponding entry in the judicial database. The complaint has not yet been registered with the Constitutional Court.

It is noteworthy that in July 2023, the Southern District Military Court in Rostov-on-Don made a decision in a similar case of private Sergei Karpachev. He challenged the inaction of the commander of his military unit, “related to non-dismissal from military service” upon reaching 50 years of age. In April 2023, the Rostov-on-Don garrison military court rejected his claim against the commander. In the next instance, the court decided that the entry into force of 269-FZ from June 2023 “does not indicate that it is not subject to application to the legal relations that arose in the case, since in its meaning it extends the effect to the entire period of mobilization, which… until now not finished.” The Fontanka publication claims that it was after this process that “the courts began to refuse to dismiss contract workers who had reached the age of 50, citing well-established court decisions.”

Mr. Peredruk admits that judicial practice on this issue, including the rulings of the Military Court of Cassation, is not in favor of his client. “Judicial practice clearly illustrates the legal uncertainty of the norm, the existence of which was agreed by the 224th Garrison Military Court, sending a request to the Constitutional Court,” says Oleg Fazulyanov.

Artem Yablokov, partner of the Yablokov Brothers law firm, reminds that by decree of the President of the Russian Federation, “contracts concluded during the period of mobilization are valid until the end of mobilization.” But the question arises as to how the rules of the law are applied to contracts concluded, firstly, before September 21, 2022 (the decree extended the validity of concluded contracts until the end of mobilization), and secondly, until June 24, 2023, when the law on raising the age limit for military service, argues Mr. Yablokov. In his opinion, it is necessary to take into account Art. 60 of the federal law “On Military Duty and Military Service”, according to which “contracts for military service concluded before the entry into force of this law are valid for the period for which they were concluded.”

Aleksey Vinokurov, partner of the Legal Assistance legal agency, draws attention to the fact that Law No. 269, which is being contested in court, “comes into force on the day of its official publication.” The law does not contain provisions on the possibility of applying this law to earlier legal relations; therefore, the law does not have retroactive force, adds Mr. Vinokurov. “Meanwhile, what lawyers who apply for a request to send a request to the Constitutional Court pay attention to is that law enforcers give retroactive force to the provisions of the law. For example, this is, unfortunately, already the standard wording used in judicial acts of the Southern District Military Court in cases regarding the age limit,” argues Alexey Vinokurov.

First Deputy Chairman of the State Duma Committee on Defense Alexey Zhuravlev (LDPR) told Kommersant that he met “on the front line both 50-year-old and 60-year-old fighters who are fully motivated and ready to fight for their Motherland until their last breath.” “In the case of the private, as far as I understand, he signed a contract even before mobilization and served the entire required period. Then, of course, it is not clear why he is not allowed to go home, since legally the terms of his contract with the armed forces have ended. Moreover, this citizen has no desire to continue his service, and such people, as practice shows, are of no use to the Russian army like milk from a goat,” reasoned Mr. Zhuravlev. “The Ministry of Defense says that there is no shortage of people in the country who want to sign a contract, and it turns out that forcibly detaining someone who does not want to does not make any sense,” the deputy added.

Alexander Voronov, Anna Zanina