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Tuesday, March 21, 2023

Second wave of mobilization or “clarification of data”? What threatens not to be on the agenda

Summonses began to come to residents of 40 Russian cities – about this informed Pavel Chikov, head of human rights group Agora*, on his Telegram channel. At the same time, the military registration and enlistment offices themselves explain this by the need to “update military registration data” and assure that the person who received the summons will not necessarily be sent in the battle zone. Vladimir Putin’s spokesman, Dmitry Peskov, called the distribution of subpoenas “standard practice” and stressed that the second wave of mobilization in the Kremlin “is not being discussed”. In turn, some people who received them say that the summons indicated not only the need to report to the military registration and enlistment office, but also to participate in military training. Lawyer Mikhail Romanov, a member of the Lawyers and Business Council, helped RTVI understand what was going on.

Is the president’s statement on the end of the partial mobilization legally founded?

A partial mobilization has started on the basis of presidential decree number 647 of September 21. There was no cancellation of the decree, no deadline for its execution was indicated. What actually happens is decided by the Ministry of Defense. The decree clearly indicates that it is he who determines the mobilization plans. Therefore, statements by our state officials that it is over do not carry legal consequences. As she walked, so she goes.

There is a federal law on mobilization training and mobilization in the Russian Federation. By the way, he for a long time foresaw the concept of partial mobilization – despite the fact that some say that this is not the case. Another issue is that there is no explanation of the difference between partial and full. In fact, the meaning of these concepts is determined by those who declare it.

In general, there is only a certain period of mobilization, and during which certain measures are taken, provided for by federal laws, ordinances, decrees, etc. The law provides certain rights and obligations for state bodies and citizens of the Russian Federation. There are restrictions and special modes.

Above all, I would like to highlight the amendments made to the Penal Code in September 2022, according to which the commission of any crime during the period of mobilization is considered an aggravating circumstance.

It is therefore important to understand that mobilization is not only a call, it does not only concern the military sphere directly. It is also the mobilization of the economy. The state has the right to require ordinary commercial enterprises to implement certain measures to ensure economic stability or perform certain tasks.

What does the Data Clarification Agenda require?

Kirill Kukhmar / TASS

Since the mobilization, as I said above, continues, the obligations foreseen during its period must be fulfilled. In the same law on mobilization training, there is an article that specifies the duties of citizens during this period. Including citizens who are in the reserve, they are required to report when called by military commissariats and federal executive bodies to determine their purpose during the mobilization period. The wording here is very broad.

There is an obligation to appear at a summons in accordance with Article 10 of the Mobilization Act. The call is made by the agenda. Therefore, if the summons is received, the citizen has a legal obligation to appear.

At the same time, it does not matter whether the citizen was registered recently, did not show up before, or six months ago, he has already clarified his data.

What threatens not to be on such an agenda

In case of non-registration in the agenda of a citizen who is or is obliged to register with the army, administrative liability arises, which is enshrined in the Code of Administrative Violations. The wording is also very broad. Almost all men who have not reached the age limit and who are not exempt from military service for health reasons are registered with us.

In case of non-appearance at the summons of the military commissariat or other state body, liability is provided for in the form of a fine in the amount of 500-3 thousand rubles. And under this article, you have the full right to be drawn if you received a summons in the forms prescribed by law (that is, against signature), or with a registered refusal to receive it. This is administrative responsibility.

A lot of people say we don’t have criminal penalties for not being on the agenda, but I would say there’s always a risk of criminal liability. The Penal Code contains Article 328, which applies to conscripts between the ages of 18 and 27 who evade conscription for military service (and will soon turn 30 when the conscription age is raised).

In 2008, a decision was taken by the Plenum of the Supreme Court, which describes the procedure for applying this article. There is indeed an explanation that s. 328 of the Criminal Code applies to conscription service. But I want to emphasize that, given the speed with which we not only pass laws, but also change the practice of their application, it is possible to initiate criminal proceedings against those mobilized.

The text of the article can be directly interpreted as referring not only to an urgent appeal, but also to a call for mobilization. After all, the Mobilization Law contains the wording “conscription of citizens for military service for mobilization.” And the article of the Criminal Code does not specify what type of appeal it is.

The decision of the Plenum of the Supreme Court, which I have already mentioned, contains an interesting phrase that “the conscript’s refusal to receive a summons from the military commissariat or to send the draft commission against a receipt” is subject to a restriction under the first part of Article 328. And it’s the same article on avoidance of appeal.

Lev Fedoseev/TASS

The Supreme Court says that refusing to receive a subpoena qualifies as evasion and, therefore, a crime. But at the same time, the same plenum says that the subjects of the crime are male citizens who have reached the age of 18, who are or are obliged to be registered in the army and are not in the reserve . Thus, the Supreme Court indicates that this article applies only to conscription service, and not, for example, to contract soldiers or reserve soldiers who have received a summons to clarify data or to request military training .

However, it is important to understand that the decision of the plenum was adopted in 2008 and revised in 2010. Many years have passed since that time, and then no one could even imagine that our country would plunge into the state in which it currently stands.

The criminal article has two parts. The first is to escape conscription for military service, the second is to escape alternative civilian service. For evading military service, up to two years in prison or hard labor, arrest up to six months and a fine are provided.

As far as I know, in practice the decision of imprisonment in such cases is practically not made, unless it is a matter of combination with other crimes. As a rule, it is either a fine or a suspended sentence.

What does sending for military training mean?

Sending to military training in accordance with the law can be carried out exclusively for preparation for military service of citizens who are in the reserve.

At the same time, these fees are difficult to distinguish from ordinary military service. “Called up for military training” is a separate status. Although such a person is not formally a soldier, he is not very different from him. At the same time, it should be borne in mind that during the training camp at the site of the military unit or immediately after the end of the training camp, a decision may be made regarding a such a person to call for mobilization. And here it is no longer possible to receive a summons or a corresponding command will not work.

Indeed, the aforementioned laws, including those on mobilization, allow military registration and enlistment offices to interpret them quite freely. We have seen how the first wave of mobilization unfolded. People who fell into it, having entered the military registration and enlistment office, practically could not get out, unless they got out. Therefore, if a person has ever presented to the military registration and enlistment office, they have been registered and called up, then in fact they are already military. Will serve where ordered.

And from that moment, other articles of the Criminal Code apply to him, the responsibility of which reaches up to 15 years in prison.

I would also like to highlight the provisions of paragraph 5 of article 17 of the Federal Law on Mobilization, which stipulates that military personnel continue to perform their military service when mobilization is announced. In the decree of the President of Russia on the announcement of partial mobilization, it is noted that the only grounds for dismissal from military service of contract servicemen and mobilized persons can only be reaching the age limit, recognition of unsuitability for military service for health reasons and entry into force of a court decision pronouncing a prison sentence. There are no other reasons.

There is already quite a bit of case law on this subject. For example, I have before me the decision of the military court of the Novocherkassk garrison, when a contract employee wanted to resign due to the end of the contract and was unable to do so. He tried to appeal the decision in court, where he was dismissed in accordance with the law and the presidential decree, according to which, during the period of mobilization, the end of the contract is not a reason for dismissal from the service .

So if they suddenly tell you at the military registration and enlistment office that they will call you in for six months or some other period, after which you will be free, there is absolutely no guarantee for that. Moreover, it now turns out that conscripts whose term ends can be immediately mobilized and, accordingly, in accordance with the Decree on Mobilization and the Law on Mobilization, continue their service.

The opinion of the author may not coincide with the opinion of the editors

  • In 2014, a human rights organization called “Agora” was entered into the register of non-profit foreign agents, and in 2016 it was liquidated by a court decision. Currently, the international human rights group “Agora” operates without forming a legal entity

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