Article 328. Evasion from military and alternative civil service

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.

What does draft evasion mean?

Means deliberate actions aimed at exemption from conscription, military service, alternative service by feigning illness, failure to appear at the military registration and enlistment office, or other actions of a person of military age. In world practice, both isolated cases of evasion and mass cases are known, when citizens do not support the position of the state and do not go to war. Most countries have compulsory conscription for military service, and evasion is punishable by law. During the Vietnam War, the English term appeared. draft dodgers, which means "dodger".

Ways to evade military service are:

1. illness simulation;
2. bribe;
3. self-harm;
4. spontaneous abandonment of a military unit;
5. desertion for a military personnel;
6. ignoring events related to conscription, expressed in failure to appear at the military registration and enlistment office;
7. submission of false or fictitious documents in order to obtain a deferment or release;
8. failure to appear without good reason for a medical examination or a meeting of the commissariat;
9. other deceptive actions.

As for draft evasion, this most often includes failure to appear at the military registration and enlistment office, ignoring summonses, running away from the commissariat employees, traveling outside the country at the time of the conscription campaign, feigning illness, and providing false documents.

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.

Administrative responsibility

Evasion of conscription without legal grounds is punishable by a fine. A payment of up to 200,000 rubles, 1 salary or other income of the convicted person for 18 months is provided. If there is no opportunity or desire to pay a fine, another punishment is provided - forced labor for 2 years, arrest for up to 6 months, imprisonment for up to 2 years. (As amended by Federal Laws dated December 8, 2003 N 162-FZ, dated March 7, 2011 N 26-FZ, dated December 7, 2011 N 420-FZ). The penalty is determined by the court.

Evasion of alternative civil service by persons exempted from military service is punishable by a fine of up to 80,000 rubles or in the amount of wages or other income of the convicted person for 6 months. If it is impossible to make a payment, other penalties are provided - compulsory work for a total of 480 hours, arrest for up to 6 months. (As amended by Federal Laws dated December 8, 2003 N 162-FZ, dated March 7, 2011 N 26-FZ, dated December 7, 2011 N 420-FZ)

How do they look for draft dodgers?

The search is being carried out by representatives of the Ministry of Internal Affairs and local administration. If a young man does not respond to summons for a long time, does not appear at the military registration and enlistment office, his personal file is transferred to the Investigative Committee of the Russian Federation, and the conscript is put on the wanted list. When determining his whereabouts, representatives of authorized bodies have the right to bring the young man to the military registration and enlistment office by force.

Hiding from the military registration and enlistment office and evading are different concepts. In the first case, the commissariat may not know about the existence of a young man of military age, or his personal file has been lost. A draft dodger is considered a citizen of the Russian Federation who has received a summons and fails to appear at the military commissariat at the specified time. If the document was not handed over under signature, the young man cannot be a draft dodger. Such a person is not subject to an administrative fine, and criminal proceedings are not opened. The police are looking for those young men whom the military registration and enlistment office cannot find. Employees of internal affairs bodies have the following powers:

• search for citizens, collection of necessary information about the conscript’s stay;
• delivery of a summons against signature;
• sending the counterfoil with a signature to the military registration and enlistment office.

Police officers do not have the right to detain a wanted person or forcibly deliver them to a military commissariat, but in practice in most cases it happens differently.

Reviews

Dear readers, was this article helpful? What do you think about evading military service? Leave feedback in the comments! Your opinion is important to us!

Edward

“I ran from the military registration and enlistment office until I was 26 years old. This fall, a literal hunt for draft dodgers began. We were walking around the city with a friend, and a police car pulled up. Several people are from there. They are heading towards us. We're running. They threw something at me, knocked me down, my friend ran away. They immediately brought me to the military registration and enlistment office. There is an application, questionnaires, etc. They sent me to a commission, and a couple of months later they took me to serve.”

Maksim

“The military registration and enlistment office forgot about me for three years, then they suddenly showed up. We arrived at the registration address. I work unofficially in another country and am never at home. The last time I was taken straight off the train and sent to the military registration and enlistment office. That’s how I ended up in the army.”

What is military service

Military service is professional service activity in military positions in the armed forces, troops, formations, bodies ensuring security and state defense. The main task is protection, defense of the country. Each soldier is assigned a specific rank. In most countries, only men are conscripted into military service. In Russia, the age range is from 18 to 27 years. In case of martial law, men under 50 years of age are called up.

Citizens of Russia - men and women - can serve on a voluntary basis - contract, or compulsorily - by conscription. All citizens in service receive the status of military personnel. Titles are awarded in accordance with Art. 6, Federal Law “On the Public Service System of the Russian Federation” of May 27, 2003.

The beginning of service is the day of departure from the military commissariat to the place of conscription service. Duration for conscripts is 1 year. Consists of the daily performance of military duties in the Armed Forces of the Russian Federation, other state troops, foreign intelligence agencies, security agencies, and other formations and bodies.

The status of a military serviceman is determined by the Constitution of the Russian Federation, the Federal Law “On the Status of Military Personnel”, the Federal Law “On Military Duty and Military Service” of March 28, 1998, other federal constitutional laws and federal laws, as well as decrees of the President of the Russian Federation, decrees of the Government of the Russian Federation , military regulations, and other regulatory legal acts. A serviceman has job responsibilities, rights, a certain amount of work, functions, and tasks. They are determined by military regulations, regulations, manuals, instructions, orders of direct superiors.

The President of the Russian Federation states:

1. a unified list of military positions to be filled by senior officers in the Armed Forces of the Russian Federation, other troops, military formations and bodies;
2. the total number of military positions to be filled by colonels, captains of 1st rank in the Armed Forces of the Russian Federation, other troops, military formations and bodies.

The Minister of Defense of the Russian Federation, the head of another federal executive body determines the procedure for approving the List of other military positions.

Formations for ensuring defense and state security include:

1. Ministry of Defense of the Russian Federation (Ministry of Defense of Russia);
2. Federal Service for Technical and Export Control;
3. Federal Service for Military-Technical Cooperation;
4. Federal Agency for Special Construction of Russia (Spetsstroy Rossii);
5. Federal Security Service of the Russian Federation (FSB of Russia);
6. Federal Security Service of the Russian Federation (FSO of Russia);
7. Federal Service of the National Guard Troops of the Russian Federation;
8. Border Service of the Federal Security Service of the Russian Federation;
9. State Fire Service;
10. Foreign Intelligence Service of the Russian Federation (SVR of Russia);
11. Ministry of the Russian Federation for Civil Defense, Emergency Situations and Disaster Relief (EMERCOM of Russia), including military units;
12. Ministry of Internal Affairs of the Russian Federation (MVD of Russia);
13. Main Directorate of Special Programs of the President of the Russian Federation (GUSP).

Each conscript is assigned a fitness category based on the results of the medical commission. Young people with good health and good physical fitness are selected to serve in the elite troops. They are assigned category A. Guys with good health or minor deviations are taken into any troops, they are assigned fitness categories A, B. They are released from service and sent to the reserve for those who, for health reasons, cannot serve in the army. In this case, category B is assigned. Conscripts with significant health problems are completely exempt from serving in peacetime and wartime; they are given a military ID with category D.