Man convicted of evading mobilization 24 years after being removed from military registration: what the Supreme Court decided

The Supreme Court overturned the sentence of a man who was sentenced to three years in prison for evading mobilization and closed the criminal proceedings. The court established that in 1999 the man was declared unfit for military service due to health reasons and "removed from military registration." The court concluded that this wording effectively meant exclusion from military registration.

This conclusion was reached by the Cassation Criminal Court as part of the Supreme Court in case No. 138/36/24.

Case circumstances

The man was registered for military service and was considered fit for military service based on his health. He refused to receive a summons at the premises of the territorial recruitment and social support center. In October 2023, the man did not arrive at the designated time to the assembly point for mobilization and deployment to the military unit.

His actions were qualified under Article 336 of the Criminal Code of Ukraine as evasion from conscription for military service during mobilization.

At the same time, the defense argued that the man was not a subject of this crime. According to their arguments, on October 13, 1999, he was declared unfit for military service due to health reasons and removed from military registration. The relevant records were contained in his registration card, temporary certificate, and passport.

The Mohyliv-Podilskyi City District Court of Vinnytsia region found the man guilty under Article 336 of the Criminal Code of Ukraine and sentenced him to three years imprisonment.

The court proceeded from the fact that at the time of the events in October 2023, the man was registered for military service and was fit for military service. The court did not agree with the defense’s arguments that the man had been excluded from military registration back in 1999. The court noted that the documents used the wording "removed from military registration," not "excluded from military registration."

The Vinnytsia Court of Appeal left the verdict unchanged.

"Removed" from registration in 1999 effectively meant "excluded"

The Supreme Court disagreed with the conclusions of the lower courts that the man remained liable for military service only because of the wording "removed from military registration."

The court explained that at the time the man was declared unfit for military service, the legislation and subordinate acts used different terminology.

In particular, under the version of the legislation effective until July 31, 1999, for citizens declared unfit for military service by the military-medical commission, the wording "removal from military registration" was used. The concept of "exclusion from military registration" was introduced later. Although the new version of the law was already in effect at the time of the man’s unfitness decision, the subordinate normative acts of the Ministry of Defense had not yet been brought into compliance with these changes. They continued to provide the wording "unfit for military service with removal from military registration."

According to the Supreme Court, in the case of complete unfitness for military service, such wording effectively meant the final exclusion of the person from military registration.

The court emphasized that it is necessary to evaluate not only the technical wording in the document but the essence of the state’s decision. The man was recognized as completely unfit for military service due to health reasons, and therefore his legal status corresponded in substance to the status of a person excluded from military registration.

The Supreme Court noted that in April 2024, the Regulation on Military Medical Examination was amended. After that, a repeated medical examination became possible, including for persons previously recognized as completely unfit for military service. However, these changes occurred after the events that formed the basis for the man’s prosecution. Therefore, according to the court, the presence of a criminal offense must be assessed according to the legislation in force at the time the act was committed.

In conclusion, the Supreme Court closed the criminal proceedings against the man on charges under Article 336 of the Criminal Code of Ukraine due to the absence of elements of a criminal offense in his actions.

Subscribe to our Telegram channel t.me/sudua and to Google News SUD.UA, as well as to our VIBER and WhatsApp, page on Facebook and on Instagram to stay informed about the most important events.