The lawyer assessed the criminal cases of those mobilized for refusing to appear on the agenda

The day before, the first criminal case was opened in the Penza region against a 32-year-old dodger. The guy refused to appear at the military registration and enlistment office on the agenda, and now he was detained with the participation of riot police.

And, although Article 328 of the Criminal Code of the Russian Federation, which he is now accused of, assumes in its composition only evasion of an urgent draft or alternative military service – it says nothing about mobilization, full or partial – there are almost no doubts about the prospects of this criminal case. The fact that it may well go to trial and sentence is quite real.

– In fact, article 328 of the Criminal Code of the Russian Federation refers to conscription for military service. This is not mobilization. Is there a crime here? Or can it be judged by the “similar” composition? – I ask Alexander Skovorodko.

– There is a criminal law, there is a civil law. Civil law is usually allowed to be applied by analogy, using a similar legal rule. That is, for example, considering “draft evasion” from the point of view of civil law, I believe we could also interpret it as “mobilization evasion”. The meaning is similar – so you can apply. But this can only be in civil law, I repeat, criminal law does not apply by analogy.

– But after all, those who initiated a criminal case should know about it? Are these rules written somewhere?

– This is the “Theory of State and Law”, a discipline that all lawyers know by heart. Therefore, an appeal to a higher court, if it follows from the side of lawyers, will most likely be fully justified, and the court, it is possible, may take the side of the one who evaded mobilization.

– Surely law enforcement officers consulted with someone before the case was set in motion. And, perhaps, this case will become a precedent, the first sign …

But the man hasn’t been convicted yet. I think the lawyer should definitely appeal this case. If he believes that the criminal article against his client was applied incorrectly, they were applied by analogy. Of course, we may not know something, but at first glance there is no corpus delicti here.

– Previously, convicts, having vainly gone through all the instances with us, could complain to the European Court as the last resort. And what authority can you turn to now?

– Yes, since September 16, 2022, Russia has ceased to be a party to the European Court of Human Rights; violations committed against Russian citizens after this date cannot even technically be addressed to the ECHR. We can only hope for domestic justice. But, oddly enough, in recent months our courts have behaved even more adequately than European ones, so the guy certainly has a chance.

– And what was wrong with the ECtHR?

– Very much red tape all affairs, since February. They justified it by the fact that anyway we are already withdrawing from the Convention, and the accumulated debt of Russia according to the decisions of the ECtHR is more than 70 million euros.

The response to the last case I dealt with came on September 15, 2022 by e-mail to the applicant. They said that the applicant had a special personal account at the ECtHR. He was sent the number of the complaint and that it was accepted for consideration. “Wait for further instructions”… And the next day, the same complaint was declared unacceptable, so that, probably, under the current circumstances, it would no longer be dealt with. Bureaucrats!

– Most likely, in the very near future significant changes will be made to the Criminal Code, which will allow initiating cases against mobilization evaders. But at the same time, the criminal law does not have retroactive force, does it?

– No, the aggravating law is not retroactive. But, most likely, such changes in the Criminal Code are indeed planned. This follows from the logic of things. Although, even if the punishment is toughened, then these changes, I believe, should not apply to comrades against whom criminal cases have already been opened under Article 328 of the Criminal Code of the Russian Federation. If at the time of the commission of the acts incriminated to him, such a rule of law did not exist. And according to the current terms of punishment, as far as I understand, an evader from Penza faces only up to two years in prison.

– In your practice did not meet similar precedents?

– A long time ago. It was 1994-1995. I then worked in the military prosecutor’s office as an interrogating officer. At that time, there was a rule that conscripts should be dismissed from military service after two years. Day to day. For example, they called on October 6, 1994, and he must go home on October 6, 1996. Not later than.

A fighter was tried in the Kandalaksha garrison military court. He served exactly the prescribed term, but the dismissal document was not signed. A day passed, two, a week … And he had a difficult situation at home, his mother fell ill. And he, without waiting for the order, arbitrarily leaves the unit. A criminal case is initiated, it goes to court. And the judge justifies him and releases him in the courtroom! And it was during the Chechen events. But – justified! Based on the fact that at the time of leaving the unit, the citizen was no longer a soldier.

Even despite the fact that there was no official paper about his dismissal. Nevertheless, they correctly figured it out, and justice triumphed.

– Do you think that criminal liability may threaten those who have now left Russia? How will they be detained, returned? Is it even possible?

– If at the time of crossing the border there was no summons from the military registration and enlistment office, then, I believe, no, they cannot face criminal prosecution. From the point of view of the law, there is no corpus delicti here.

Although, of course, situations can be different, sometimes they reach the point of absurdity. For example, recently a friend of mine went abroad for treatment. He is a captain, a little over forty, that is, by age and rank he may be subject to mobilization. But at the same time, he is a disabled person of the second group, moreover, due to a serious illness, and this is very noticeable externally. All disability documents were in perfect order. So at the border they still questioned him for a long time on the subject: you are sure that you will not be called up – you are an officer! It seems to me that, nevertheless, common sense should prevail in any case, as well as the letter of the law.