Does the reservation of the head of a religious community exempt from liability for evasion of mobilization: court decision

Legislated reservation or deferment from conscription during mobilization often become grounds for disputes regarding their impact on criminal liability for evasion of military service conscription.

In practice, the question arises whether acquiring the right to reservation after committing the incriminated act can be considered a change of circumstances that provides grounds for exemption from criminal liability under Article 48 of the Criminal Code of Ukraine.

Resolving such disputes has practical significance for forming a unified approach to the application of criminal law under martial law and general mobilization conditions.

The Rivne City Court of Rivne Region considered this issue in a criminal proceeding accusing a person of committing a criminal offense under Article 336 of the Criminal Code of Ukraine. The court decided whether the defendant’s obtaining a reservation after committing the incriminated act is sufficient grounds for exemption from criminal liability due to a change of circumstances.

Circumstances of the case

A criminal proceeding is underway at the Rivne City Court accusing a person of committing a criminal offense under Article 336 of the Criminal Code of Ukraine.

The defense filed a motion to close the criminal proceeding and exempt the accused from criminal liability under Article 48 of the Criminal Code of Ukraine due to a change of circumstances.

As stated in the motion, on May 17, 2026, the accused, who is the head of a religious organization, was reserved by an authorized person of the State Service of Ukraine for Ethnopolitics and Freedom of Conscience. According to an extract from the "Reserve+" application, the reservation is valid until May 8, 2027.

The defense believes that obtaining the reservation indicates a change of circumstances that provides grounds for exempting the person from criminal liability under Article 48 of the Criminal Code of Ukraine.

The prosecutor opposed the motion, stating that the circumstances cited by the defense do not indicate such a change of circumstances that would eliminate the social danger of the incriminated act amid ongoing armed aggression by the Russian Federation against Ukraine.

Position and conclusions of the court

The court noted that according to paragraph 1 of part 2 of Article 284 and part 1 of Article 285 of the Criminal Procedure Code of Ukraine, criminal proceedings may be closed by the court due to exemption from criminal liability only in cases provided by the law of Ukraine on criminal liability.

According to Article 48 of the Criminal Code of Ukraine, a person who committed a criminal misdemeanor or minor crime for the first time, except for categories of criminal offenses defined by law, may be exempted from criminal liability if, at the time of the criminal proceeding, due to a change of circumstances, the act committed lost its social danger or the person ceased to be socially dangerous.

The court referred to the explanations set out in paragraph 7 of the resolution of the Plenum of the Supreme Court of Ukraine dated December 23, 2005, No. 12 "On the practice of applying the legislation on exemption from criminal liability," according to which Article 48 of the Criminal Code of Ukraine provides two independent grounds for exemption from criminal liability: loss of social danger of the act or loss of social danger of the person due to a change of circumstances.

The court also considered the legal conclusion of the Supreme Court set out in the ruling of April 13, 2023, in case No. 157/1091/22, according to which a person can be recognized as having ceased to be socially dangerous only when the person or the circumstances around them have undergone such positive changes that make it impossible for them to commit a new criminal offense. Such changes must significantly affect the person’s behavior and indicate the loss of the appropriateness of applying criminal law measures to them.

At the same time, the court emphasized that the persistence of the social danger of the criminal offense itself does not exclude the possibility of applying Article 48 of the Criminal Code of Ukraine if the person ceased to be socially dangerous, but this circumstance must be properly confirmed.

Evaluating the specific circumstances of case No. 569/14582/26, the court noted that martial law continues to operate in Ukraine, general mobilization has not been terminated, and Russian armed aggression continues both at the time of the incriminated act and at the time of the case consideration. Under such conditions, there are no grounds to assert that the criminal offense under Article 336 of the Criminal Code of Ukraine lost its social danger due to a change of circumstances.

The court separately noted that the incriminated criminal offense, according to the indictment, was committed on February 1, 2026, while the right to deferment from conscription during mobilization was granted to the accused only on May 17, 2026. Thus, at the time of committing the incriminated act, he did not have a deferment and there were no legal grounds for obtaining it.

Additionally, the court considered the legal position of the Supreme Court set out in the ruling of February 26, 2026, in case No. 632/1141/25, according to which the mere fact of acquiring the right to deferment from conscription during mobilization does not refute the fact of committing a socially dangerous act under Article 336 of the Criminal Code of Ukraine and is not grounds for exemption from criminal liability.

Considering the above, the court concluded that the accused’s obtaining a deferment until May 8, 2027, cannot be considered a change in his living conditions within the meaning of Article 48 of the Criminal Code of Ukraine, since such deferment is temporary.

The court also noted that materials characterizing the accused, together with the fact of granting him a deferment, do not confirm a significant change of circumstances after committing the incriminated act. The provided reservation does not eliminate the criminal-legal consequences of the actions described in the indictment if proven by the prosecutor during the trial and does not confirm the presence of such changes that would make it impossible to commit new criminal offenses.

In conclusion, the court stated that the circumstances cited by the defense do not confirm either a significant change of circumstances or that the accused ceased to be a socially dangerous person. Therefore, the court found no grounds for applying Article 48 of the Criminal Code of Ukraine.

As a result of the consideration, the Rivne City Court denied the defense’s motion to close the criminal proceeding and exempt the accused from criminal liability due to a change of circumstances. The ruling is not subject to appeal.

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