Father of three children sentenced to 3 years in prison for failure to appear under a combat summons: Supreme Court rejected defense's cassation

The Supreme Court, composed of a panel of judges from the Cassation Criminal Court, reviewed the defense's cassation appeal against the verdict under Article 336 of the Criminal Code of Ukraine regarding evasion of conscription during mobilization. The Court concluded that there were no grounds to impose a more lenient punishment than provided by law, nor to release the convicted person on probation, and left the decisions of the lower courts unchanged.

Case Summary

The conscription-eligible man underwent a military medical commission which declared him fit for military service. He had no grounds for deferral from conscription during mobilization.

The man received a combat summons to appear at the Territorial Recruitment and Social Support Center for further assignment to the National Academy of Land Forces in Lviv for retraining and qualification improvement courses.

He did not appear at the Territorial Recruitment Center at the appointed time and ignored the summons without valid reasons. The courts concluded that these actions constituted intentional evasion of conscription during mobilization in a special period, which is a criminal offense under Article 336 of the Criminal Code of Ukraine. 

Decisions of the First and Appellate Courts

The Obukhiv District Court of Kyiv region found the man guilty of evading conscription during mobilization and sentenced him to three years imprisonment.

When sentencing, the court took into account that the accused had no prior convictions, was officially employed, had two minor children to support, and was positively characterized. The court recognized active assistance in solving the criminal offense as a mitigating circumstance. No aggravating circumstances were found.

At the same time, the court emphasized that the crime was committed under martial law and general mobilization, and the accused, without legal grounds for deferral, consciously ignored his constitutional duty to defend the state. Considering this, the court imposed the minimum punishment provided by the sanction of Article 336 of the Criminal Code of Ukraine.

The Kyiv Court of Appeal agreed with these conclusions and upheld the verdict.

Position and Conclusions of the Supreme Court

In case No. 372/5738/24, the Supreme Court found no grounds to satisfy the defense's cassation appeal and agreed with the conclusions of the lower courts regarding the imposed punishment.

The Court noted that the punishment of three years imprisonment complies with the requirements of Articles 50 and 65 of the Criminal Code of Ukraine, is necessary and sufficient for the correction of the convicted person and prevention of new criminal offenses.

The imposed term is the minimum provided by the sanction of Article 336 of the Criminal Code of Ukraine. The panel of judges noted that when imposing the punishment, the courts considered information about the convicted person, including that he had no prior convictions, was officially employed, positively characterized, had two minor children and an adult child continuing education.

Active assistance in solving the criminal offense was also considered a mitigating circumstance. No aggravating circumstances were established by the courts. Regarding the defense's arguments about sincere remorse, the Supreme Court agreed with the lower courts' conclusions about the absence of such a mitigating circumstance. The Court recalled the legal position of the Grand Chamber of the Supreme Court, according to which sincere remorse involves not only admitting guilt but also genuine condemnation of one's behavior, willingness to eliminate the consequences of the offense, and readiness to bear responsibility for one's actions.

Mere admission of guilt or consent to simplified proceedings does not automatically indicate sincere remorse. The case materials did not establish circumstances confirming that the convicted person took specific measures to rectify the consequences of the committed criminal offense.

The Supreme Court also rejected arguments about the possibility of applying Article 69 of the Criminal Code of Ukraine to impose a more lenient punishment than provided by law. The panel emphasized that this provision can be applied only if there are several mitigating circumstances that significantly reduce the severity of the criminal offense. In this case, the courtsfound only one such circumstance — active assistance in solving the criminal offense — so the necessary conditions for applying Article 69 of the Criminal Code of Ukraine are absent.

Regarding requests for release from serving the sentence on probation, the Supreme Court noted that the circumstances cited by the defense, including absence of prior convictions, having three children to support, positive character references, employment, and no claims regarding damages caused, were taken into account by the courts when imposing the minimum punishment within the sanction of Article 336 of the Criminal Code of Ukraine. However, these circumstances do not indicate the possibility of correction without serving the sentence.

The panel agreed with the conclusions of the lower courts that under martial law and general mobilization, evasion of conscription poses increased social danger. The Court emphasized that the convicted person, being fit for military service and having no legal grounds for deferral, consciously ignored his constitutional duty to defend the state. Under such circumstances, applying Article 75 of the Criminal Code of Ukraine would not comply with the principle of legality and the purpose of punishment.

In conclusion, the Supreme Court found that imposing a real sentence of three years imprisonment without applying Articles 69 and 75 of the Criminal Code of Ukraine is justified, and there are no grounds to change or cancel the decisions of the lower courts.

The ruling takes effect upon announcement, is final, and not subject to appeal.

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