Does Further Service in the Armed Forces of Ukraine Affect Liability for Evasion of Mobilization: Court's Position

The Pulin District Court of Zhytomyr Region found a serviceman guilty of evading conscription during mobilization, as provided by Article 336 of the Criminal Code of Ukraine.

The court examined the circumstances of the failure to appear upon summons to the territorial recruitment and social support center, evaluated evidence regarding the absence of the right to deferment from mobilization, and also took into account the defendant's subsequent military service when deciding on the punishment.

Case Summary

Due to the armed aggression of the Russian Federation against Ukraine, based on the Decree of the President of Ukraine No. 69/2022 dated February 24, 2022, approved by the Law of Ukraine No. 2105-IX dated March 3, 2022, general mobilization was declared throughout Ukraine and continues.

The accused was recognized as fit for military service by the military-medical commission and was subject to conscription during general mobilization. On July 22, 2024, he received a combat summons under personal signature, notifying him of the need to appear on July 24, 2024, at the territorial recruitment and social support center for deployment to military service in the Armed Forces of Ukraine.

Despite proper notification and the absence of legally provided grounds for deferment, he did not appear at the territorial recruitment and social support center on the appointed day and did not report any valid reasons. These actions were qualified by the pre-trial investigation body as evasion of conscription during mobilization in a special period.

During the trial, the accused fully admitted his guilt, sincerely repented, and confirmed the circumstances stated in the indictment. He explained that in January 2025 he was mobilized but was almost immediately hospitalized for inpatient treatment and underwent surgery. After discharge, he tried to report to the military unit but was denied entry at the checkpoint. Later, in April 2026, Military Law Enforcement Service officers delivered him to one of the military units, and since May 2026 he has been serving in the military.

The defendant's guilt was confirmed not only by his testimony but also by a collection of written evidence examined by the court. In particular, the court considered the notification from the territorial recruitment center about the criminal offense, documents regarding the military-medical commission's recognition of fitness for military service, the mobilization order, military registration documents, the conscription order during mobilization, the receipt of the combat summons, materials confirming the absence of the right to deferment under Article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization," as well as confirmation of the defendant's acquaintance with the legislation on military duty, defense, and mobilization.

Additionally, the court examined information from the Pension Fund of Ukraine, the territorial recruitment center, healthcare institutions, civil registration authorities, social protection bodies, local self-government, and a character reference from the place of residence. The totality of this evidence confirmed that as of July 24, 2024, the accused had no lawful grounds for deferment from conscription during mobilization.

Court's Position

After evaluating all the evidence collectively in case No. 292/1223/24, the court concluded that the defendant's guilt was fully proven and his actions were correctly qualified under Article 336 of the Criminal Code of Ukraine as evasion of conscription during mobilization in a special period.

When deciding on the type and size of the punishment, the court proceeded from the provisions of Articles 50 and 65 of the Criminal Code of Ukraine, according to which the punishment must be necessary and sufficient for the correction of the person and prevention of new criminal offenses. The court took into account the severity of the criminal offense, information about the offender, as well as mitigating and aggravating circumstances.

The court noted that the criminal offense under Article 336 of the Criminal Code of Ukraine is classified as a minor crime according to Article 12 of the Criminal Code of Ukraine.

The court recognized active assistance in uncovering the criminal offense as a mitigating circumstance. No aggravating circumstances were found.

Assessing the defendant's personality, the court considered that he had no prior convictions, was married, had a permanent residence, was satisfactorily characterized at his place of residence, was not registered with psychiatrists or narcologists, and was serving in the military under mobilization. At the same time, the court noted that after conscription in January 2025, the accused left the military unit without permission but returned to service in April 2026. The court also took into account that from January 20 to February 7, 2025, he was hospitalized and underwent surgery.

Referring to the legal conclusion of the Supreme Court set out in the ruling dated October 4, 2022, in case No. 523/4890/19, the court emphasized that punishment must correspond to the principles of justice, proportionality, and individualization, be adequate to the nature of the committed criminal offense, its degree of social danger, and information about the offender. The sentencing process involves a consistent assessment of the severity of the offense, as well as consideration of mitigating or aggravating circumstances and the defendant's character.

The court specifically noted that the social danger of evading conscription during mobilization is due to the special period in the state related to the armed aggression of the Russian Federation, which created a real threat to Ukraine's state independence.

The objective side of this criminal offense consists of inaction—evasion of conscription by any means during mobilization. The court established that the accused did not fulfill the constitutional duty to defend the homeland, as provided by Articles 17 and 65 of the Constitution of Ukraine, and had no objective grounds for non-fulfillment of this duty.

Court's Conclusions

Considering the severity of the criminal offense, the factual circumstances of the case, information about the accused, his family status, absence of convictions, military service under mobilization, the presence of a mitigating circumstance, and absence of aggravating circumstances, the court concluded that a sentence of imprisonment in the minimum term with application of Articles 75 and 76 of the Criminal Code of Ukraine is necessary.

The court believes that release from serving the sentence with probation is proportionate to the committed criminal offense, necessary and sufficient for the correction of the convicted person and prevention of new crimes, and cannot be considered clearly unfair due to excessive leniency or severity.

The court found the accused guilty of the criminal offense under Article 336 of the Criminal Code of Ukraine, sentenced him to three years of imprisonment, and pursuant to Article 75 of the Criminal Code of Ukraine, released him from serving the sentence with probation, establishing a probation period of one year.

The convicted person was assigned obligations under Article 76 of the Criminal Code of Ukraine, and supervision was entrusted to the commander of the military unit at the place of military service, or in case of discharge from military service—to the authorized probation authority at the place of residence.

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