"Lottery" for draft dodgers: how courts penalize those evading mobilization and why even convicted individuals can be summoned.

Up to five years of imprisonment! This is the harsh penalty stipulated by Article 336 of the Criminal Code for those evading mobilization. While there is no official statistic on the number of draft dodgers in Ukraine, according to media reports, it is estimated that at least one hundred thousand men are wanted by the Territorial Recruitment Centers (TRC). This figure is twice (!) the total number of prisoners in all the country’s jails and pre-trial detention centers. If actual sentences were given to each draft dodger, no penitentiary system could handle it.

How the courts are addressing this issue and what penalties those hiding from mobilization actually receive has been investigated by "Telegraf".

In the Unified State Register of Court Decisions, we analyzed about 50 verdicts under Article 336 "Evading Military Service During Mobilization". Generally, the judicial practice in such cases follows two main scenarios:

Scenario One – Agreement with the Investigation and Suspended Sentence

The process here is straightforward: if the maximum penalty for the crime does not exceed five years of imprisonment, the court may decide at its discretion to grant a suspended sentence. This option exists in the Criminal Code. In this case, an agreement on the admission of guilt is made between the prosecution and the defendant.

For instance, this was the verdict of the Tomakivskyi District Court of Dnipropetrovsk Oblast. The defendant ignored a military summons and failed to appear at the TRC.

"He explained that he had not served in the army and suffered from several illnesses. Additionally, he had survived a car accident, which damaged his health. Currently, he is caring for his 72-year-old mother," — the documents state.

However, the Military Medical Commission recognized the defendant as fit for service, meaning that his failure to appear for the summons constituted evasion, resulting in a three-year prison sentence. But thanks to the agreement on the admission of guilt, the actual penalty in this case was one year of probation.

Another case was heard by the Leninsky District Court of Kirovohrad, where the defendant simply submitted a statement refusing mobilization after passing the Military Medical Commission. However, "sincere remorse, expressed in genuine condemnation of his behavior, regret for his actions, and desire to correct the situation" became a mitigating circumstance. The court approved the agreement between the parties and changed the sentence from four years in prison to two years probation.

A Scheme for Evasion?

It seems there is a working scheme to "get out": refuse mobilization, receive a suspended sentence, and enjoy freedom (since mobilized individuals can only be drafted voluntarily). But not so fast!

Firstly, even those who are given a suspended sentence can still be mobilized against their will. The law "On Mobilization Preparation and Mobilization" does not contain a direct prohibition on drafting such recruits, and Ministry of Defense Order No. 337 allows for the "mobilization of convicted individuals who have been released from punishment on probation."

– There is no prohibition on this, – confirms lawyer Aleksandr Zolotukhin in a comment to "Telegraf". – However, on the other hand, a person serving a sentence essentially does not belong to themselves, as they are under the jurisdiction of the probation center. Otherwise, one could argue that the convicted individual has not served the term set by the court.

– Mobilization is only impossible for those serving sentences for serious crimes (over 10 years). All others are subject to mobilization. Anyone with a sentence of up to 10 years, even under probation – is subject to mobilization, — adds lawyer Yekaterina Anishchenko from the law firm "Riyako & Partners" in her comments to "Telegraf".

Thus, the choices for draft dodgers are limited: either mobilization without a conviction or mobilization with a conviction in their history.

Secondly, not all courts issue such "light" sentences under Article 336 and release draft dodgers on probation.

Scenario Two – Real Sentence as a Lesson for Others

Here, things get even more interesting. Let's consider the verdict from the Tysmenytsia District Court in Ivano-Frankivsk Oblast as an example.

In this case, the defendant also failed to appear for the military summons "because he was not ready to serve in the army and needed to take care of his elderly parents," — the case materials state.

The defendant had two young children dependent on him, "he fully admitted his guilt, expressed remorse for his actions, condemned his illegal behavior, and actively contributed to the investigation of the criminal offense." Moreover, a representative from the probation authority testified in court, emphasizing that the defendant could be rehabilitated without isolation from society. Nonetheless, the sentence was not a suspended one, but a real term – one year of imprisonment.

Why? The fact is that in such cases, courts are guided by the position of the Supreme Court: "considering the current situation in the country – the armed aggression of the Russian Federation and the constitutional duty of every citizen to defend the Motherland, intentional minor offenses pose significant public danger. Therefore, the release from serving the sentence creates a negative impression of disorder and impunity in the eyes of citizens and society as a whole".

The same position was taken by the Balakliia District Court of Kharkiv Oblast, which sentenced a draft dodger to three years in prison.

"Such actions demotivate other individuals subject to mobilization, reduce military discipline and the combat readiness of the defense forces of Ukraine", — states the case materials.

And the Lutsk City District Court of Volyn Oblast, which sentenced a draft dodger to 3 years and 6 months.

"Although the crime formally falls into the category of minor offenses, it is actually aimed at disrupting mobilization in Ukraine during the declared martial law, indicating the heightened public danger of such actions amid the ongoing armed aggression of Russia. Rehabilitation of the accused is impossible without isolation from society ", — the court justified its decision.

Thus, imposing a real sentence as a lesson for others is a well-established practice under Article 336 of the Criminal Code.

State "Lottery"

However, this raises the question: what determines whether a draft dodger receives a suspended or real sentence? According to lawyers interviewed by the publication, it is a complete "lottery."

– The court considers circumstances that could influence the decision regarding the crime. These can include family circumstances, personal experiences, and so on. If the court finds this appropriate, based on its subjective opinion, it may take these factors into account and mitigate the sentence for the individual, — adds Zolotukhin.

But it may also not take them into account, as we saw earlier in the example of the Tysmenytsia District Court verdict from Ivano-Frankivsk Oblast.

"The imposition of punishment is at the court's discretion and is carried out only based on the judge's internal conviction ", — states the case materials.

– The judge makes the decision at their discretion, examining the evidence. There is no established decision that would be the same for everyone. Everything is individual, and each case has its own unique situation: presence of dependents, reasons for evasion (how it came to be), whether there is anyone dependent on them, character references, whether they are employed or not. It is a combination of many factors, — assures Anishchenko.

Theoretically, the lack of established judicial practice and the verdict "based on the internal conviction of the judge" creates corruption risks. For instance, a defendant might "motivate" a judge to reach a more lenient decision. However, a necessary condition for a sentence without a real term is an agreement on the admission of guilt between the prosecution and the defendant. This mechanism significantly complicates the opportunities for "arranging" matters, as it requires agreements not only with the judge but also with the prosecutor.

But what about appeal?

Does it save draft dodgers from harsh real prison sentences imposed by the court? Not at all! In fact, the opposite occurs: most appeals are filed not by the convicted... but by prosecutors. They are dissatisfied with the overly "lenient" verdicts from first-instance courts.

For example, in a case reviewed by the Dniprovskyi Court of Appeal, a two-year suspended sentence for a local farmer turned into three years of real imprisonment after the prosecutor