What will happen under Article 328, part 1. What is not considered evasion

By the verdict of the N city court of the Leningrad region, citizen K. was found guilty of committing a crime under Part 1 of Article 328 of the Criminal Code of the Russian Federation and was sentenced to six months in prison with a suspended sentence. In itself, such a sentence is rather an exception to the rule.

This is due to the fact that in the overwhelming majority of cases, prosecutors refuse to initiate criminal cases in this category: it is too difficult to prove the intent of a young man, and the recruitment procedure itself is a rather complicated undertaking. In the procedure for carrying out conscription activities, it is always possible to find violations by calling into question the results of a medical examination and the decision on conscription made on their basis, which, in turn, makes it impossible to find a citizen guilty of evading military service. Part one of Article 328 of the Criminal Code of the Russian Federation reads as follows: “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 wages or other income of the convicted person for a period of up to eighteen months , or arrest for a term of three to six months, or imprisonment for a term of up to two years.” I would like to draw attention to the words “in the absence of legal grounds for exemption from this service.” That is, the prosecutor’s office, during the preliminary investigation, must prove that the citizen not only did not appear on the RVK subpoena he signed to be sent to his place of service (that is, after undergoing a medical examination and making a decision by the draft commission), but also did not have other, possibly unaccounted for, the draft commission or doctors of the RVC grounds for deferment or exemption from conscription. All this is very difficult, and the level of crime is currently such that it is not always relevant to deal closely with this category of cases. And yet the young man was convicted. I would like to dwell on the main points and factors that allowed the court to pronounce a guilty verdict.

It all started with Citizen K. being beaten by a group of young men. As a result of this beating, he received a blow to the head and lost consciousness for some time. There were witnesses to this incident who helped him get home and called a doctor. The young man was examined and given a ticket to see a doctor at the local central district hospital. There were abrasions and bruises on almost the entire body. However, Mr. K. did not go to this medical institution and preferred to simply rest at home. In relation to the fact of the beating, the internal affairs bodies were interested in him, however, the young man, being completely indifferent, did not go to the police station when he was verbally summoned. Then the “harsh workdays” began, and then, as always, unexpectedly, a summons arrived. The young man showed up at the RVC, went through the doctors and showed a ticket from the Central District Hospital of the city of N., on which, in particular, it was written “suspicion of a concussion.” However, his story did not make any impression on the RVC doctors; they considered it possible to declare him fit for military service immediately after a medical examination and without any referrals for additional examination. He was given a summons to be sent to his place of duty. It is obvious that the conscript not only did not insist on initiating a criminal case into the fact of his beating, but also did not consider it necessary to undergo examinations, which were necessary not only as a chance not to go into the army, but also simply for the health of the young man.

The second stage was the appeal of the military commissar to the prosecutor's office of the city of N. with a request to initiate a criminal case. At the same time, prosecutors were especially interested in whether the decision to draft was challenged by the citizen in the manner prescribed by law. I believe the answer is obvious: the young man did not dispute anything, did not file any complaints, not to mention an application to the court, he simply awaited his fate, hoping that his oral arguments would be heard. I believe that even the busiest prosecutor would be happy to bring such a gift of fate to trial. Judge for yourself: the suspect himself, having real opportunities to avoid not only responsibility, but also being drafted into the Armed Forces (at least the current one), did everything (or rather, did nothing) to bring about an indictment. Despite the fact that the prosecutor demanded a sentence of two years, and the court reduced this period by four times, it is obvious that the young man had the opportunity to avoid this sentence.

To achieve a positive result in this case, in addition to knowing your rights and obligations of military commissariats and draft boards, you must:

1. Know that the RVC doctor cannot establish on the spot that the young man is healthy when the latter presents medical documents. The young man, at a minimum, should be sent for additional examination to confirm his complaints and diagnoses (or refute them);

2. Know that he has the right to declare disagreement with the conclusion of suitability and the decision of the draft commission and, if his statements are not recorded by officials, to apply in writing. In this case, the young man is required to undergo a control medical examination by doctors from a higher draft commission, which has the right to overturn the decision of the lower draft commission;

3. Know that citizen complaints must be recorded in the conscript’s personal file, and medical documents must be attached to it;

4. Achieve all of the above by writing complaints and statements, attaching the necessary medical documents to the conscript’s personal file, sending them by registered mail;

5. Independently contact law enforcement agencies in case of violation of their rights by RVC officials and draft commissions;

6. Do not hesitate to go to the courts and challenge decisions made in violation of the procedure for conducting conscription activities or that do not correspond to medical documents provided with information about the state of health.

Sincerely,
lawyer of the Specialized Bar Association "Draft"
Igor Kukanov

Article 328 part 1 of the Criminal Code of the Republic of Belarus provides for criminal liability for drug trafficking without the purpose of sale and has the following content:

Seek advice from a criminal drug lawyer:
220052, Minsk, st. Gursky, 46, office. 310 (Mikhalovo metro station)
tel.: +37529 776 12 35;
tel.: +37529 569 85 66;
tel.: +37529 690 78 20.

To understand the essence Part 1 of Article 328 of the Criminal Code it is necessary to determine the terminology used.

Manufacturing consists of deliberate actions to obtain ready-to-use drugs from plants, drugs, and other substances.

Processing is the manipulation of a narcotic substance to separate by-products or increase the drug content in the substance.

Acquisition – purchase, receipt as a gift, collection of wild narcotic plants or unprotected residues after harvesting, and so on.

Possession is the purposeful actions of a person associated with the presence of drugs in his possession. The length of the storage period does not matter.

Drug transportation is any means of moving in space using vehicles. Carrying on one's person constitutes storage.

Transfer - moving drugs by any means without the participation of the owner of the drugs (mail, luggage, etc.).

Under Article 328 Part 1 of the Criminal Code of the Republic of Belarus, both persons in whose possession the drugs were held and others who committed the specified actions at his request, with the exception of acquisition, are brought to criminal liability. A person for intentional actions described in Article 328 Part 1 of the Criminal Code of the Republic of Belarus is held accountable from the age of 16 only if there is no purpose of sale.

Judicial practice has developed approaches to assessing the circumstances of the case, which may indicate that the accused has a sales goal:

• a significant amount of drugs;
• purchase of drugs by a person who does not use them;
• and others.

If such facts are discovered, the person’s actions will be reclassified from Part 1 of Article 328 of the Criminal Code of the Republic of Belarus to more serious ones - RB.

Belarusian legislation provides for a number of crimes that may be associated with the article in question:

• Article 328 (note 1) of the Criminal Code of the Republic of Belarus - provides for criminal liability for the movement of drugs across the customs border of Belarus (smuggling);
• Parts 1-4 of Article 327 of the Criminal Code of the Republic of Belarus - establishes liability for the theft of drugs, regardless of the fact that they were in the possession of a person (organization) legally or illegally;
• Parts 1-3 of Article 329 of the Criminal Code of the Republic of Belarus - establish responsibility for sowing and growing prohibited plants for subsequent drug production;
• Article 331 of the Criminal Code of the Republic of Belarus - introduces liability for actions aimed at inducing other persons to use drugs;
• Part 1-2 of Article 332 of the Criminal Code of the Republic of Belarus - contains 2 elements - provision of premises or maintenance (organization) of dens for drug consumption.

If a person who stored drugs for his own use was caught, the substances that were found on him, in his home elsewhere, will be sent for examination for an appropriate study to detect illegal drugs. If, based on the results of the examination, it is established that the person possessed drugs, charges will be brought under Part 1 of Article 328. However, if the person commits actions that fall under the additional articles described above, the charges will be supplemented with new articles.

When assigning a punishment, the court will be guided, inter alia, by Art. 66, 71-76 general part.

Belarusian legislation in connection with changes to the Criminal Code in 2015, Article 328 (note 2) there is criminal liability for drug use(spice, mix, smoking mixtures and others) within a year after the imposition of an administrative penalty for the consumption of narcotic drugs, psychotropic substances or their analogues in a public place or appearing in a public place or being at work in a state caused by the consumption of narcotic drugs, psychotropic substances, their analogues, toxic or other intoxicating substances.

As an example, it is worth giving examples responsibility for drug use, which is not criminal:

1. administrative - part 2 of Art. 17.3 of the Code of Administrative Offenses establishes a fine of 1 to 10 basic units for drug intoxication of a person who is at the workplace during working hours;
2. disciplinary - dismissal under clause 7 of Art. 42 of the Labor Code for being under the influence of drugs at work or for using drugs during working hours or at the place of work;
3. family - deprivation of parental rights for drug addicts under Part 1 of Art. 80 of the Code on Marriage and Family.

For additional information and legal advice, please contact our team, who provide defense during the preliminary investigation and in court on Article 328 Part 1 of the Criminal Code of the Republic of Belarus.

Article 328. Evasion from military and alternative civil service

1. Evasion of conscription for military service in the absence of legal grounds for exemption from this service -

shall be 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 arrest for a term of up to six months, or by imprisonment for a term of up to two years.

2. Evasion of alternative civil service by persons exempted from military service -

shall be 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 term of one hundred eighty to two hundred and forty hours, or by arrest for a term of up to six months.

(as amended by Federal Laws dated December 8, 2003 N 162-FZ, dated March 7, 2011 N 26-FZ)

Article 337. Unauthorized leaving of a unit or place of service

1. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time for service without good reason upon dismissal from a unit, upon assignment, transfer, from a business trip, vacation or medical institution lasting more than two days, but not more than ten days, committed by a military serviceman, those undergoing military service upon conscription, -

shall be punishable by arrest for a term of up to six months or detention in a disciplinary military unit for a term of up to one year.

2. The same acts committed by a serviceman serving a sentence in a disciplinary military unit -

shall be punishable by imprisonment for a term of up to two years.

3. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service for a period of more than ten days, but not more than one month, committed by a military serviceman undergoing military service on conscription or under a contract, -

shall be punishable by restriction in military service for a term of up to two years, or by detention in a disciplinary military unit for a term of up to two years, or by imprisonment for a term of up to three years.

4. Acts provided for in part three of this article, lasting more than one month -

shall be punishable by imprisonment for a term of up to five years.

Note. A serviceman who has committed the acts provided for in this article for the first time may be released from criminal liability if his unauthorized abandonment of the unit was the result of a combination of difficult circumstances.

Article 338. Desertion

1. Desertion, that is, unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for service for the same purposes -

2. Desertion with weapons entrusted to the service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group, -

is punishable by imprisonment for a term of up to ten years.

(as amended by Federal Law dated 03/07/2011 N 26-FZ)

Note. A serviceman who has committed desertion for the first time, as provided for in the first part of this article, may be released from criminal liability if the desertion was the result of a combination of difficult circumstances.

On the practice of courts considering criminal cases of evasion of conscription for military service and military or alternative civil service, see Resolution of the Plenum of the Supreme Court of the Russian Federation dated April 3, 2008 No. 3.

Article 339. Evasion of military service duties by feigning illness or other means

1. Evasion of a military serviceman from performing military service duties by feigning illness, or causing himself any harm (self-mutilation), or forgery of documents, or other deception -

shall be punishable by restriction in military service for a term of up to one year, or by arrest for a term of up to six months, or by detention in a disciplinary military unit for a term of up to one year.

2. The same act, committed for the purpose of complete exemption from military service duties, -

is punishable by imprisonment for a term of up to seven years.

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 -
shall be punishable by a fine in the amount of up to two hundred thousand rubles or in the amount of wages
payment or other income of the convicted person for a period of up to eighteen months, or forced
labor for a term of up to two years, or arrest for a term of up to six months, or imprisonment for
up to two years.

2. Evasion of alternative civil service by persons exempt from
military service -
shall be punishable by a fine in the amount of up to eighty thousand rubles or in the amount of wages
wages or other income of the convicted person for a period of up to six months, or compulsory work for
a term of up to four hundred eighty hours, or arrest for a term of 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 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 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.

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.

The national legal portal pravo.by has published a list of amendments to the draft CC of Belarus, including the popular “narcotic” article 328 and others close to it. We list all the changes that are in the project:

• In Article 327 (Theft of narcotic drugs, psychotropic substances), the punishment for repeated theft “with or without confiscation of property” is replaced with the words “with or without a fine.”
• Add notes to the article: “The large amount of narcotic drugs, psychotropic substances, their analogues for the purposes of this article, as well as Articles 328 and 3281 of this Code, as well as the procedure for its determination are established by the Council of Ministers of the Republic of Belarus.” In a word, they can determine the size of what is prohibited each time in their own way: it can be either 0.001 or 2.5 grams.
• In Article 328, parts 2,3,4 should be stated as follows: “punishable by imprisonment for a term of three to eight years with a fine or without a fine.” This means that confiscation is also canceled here.
• In Article 328, Part 2, the minimum period is changed from 5 years to 3 years. In Part 3, the minimum term changes from 8 to 6 years.
• Article 328 (1) (Illegal movement across the customs border) added “perpetrators” - now punishment will also be carried out for actions “committed with the use of violence against a person conducting customs or border control.” But, again, without confiscation, but only with a fine.
• Article 329 (Sowing or growing plants or mushrooms prohibited for cultivation) remains unchanged, except for the same fines.
• Article 331 (Inducement to use narcotic drugs, psychotropic substances or their analogues) is being expanded - now it also applies to actions committed against two or more persons, or a known minor, or with the use of violence or the threat of its use, or by a group of persons, or a person who has previously committed crimes, as well as inducement to consume especially dangerous narcotic drugs or psychotropic substances.
• In Article 333, confiscation is also replaced by a fine.

In a word, a miracle did not happen; the deadlines for the sake of revising which deputies submitted the idea of ​​amending the law, and mothers-328 went on a hunger strike, do not actually change. Only the recommended lower limit has been lowered, from which they recommend the punishment be calculated, and only for parts 2 and 3 of Article 328. For the “heavier” parts, the terms (up to 15 years) have not changed.