Some legal advice to escape mobilisation

On 21 September Vladimir Putin declared a 'partly mobilisation' for 300.000 Russian men. In reality the numbers could be much higher. At last the war has come home to the Russians. During mobilization, escaping the draft is a legal problem for many Russians. Meduza spoke with a military attorney from the Russian Human Rights Defenders’ Coalition on how to defend yourselve if you don't want to fight. 

tegen de oorlog plakkaat''No to war, no to the grave'

by Meduza

Vladimir Putin’s September 21 announcement of Russia’s 'partial mobilization' was immediately followed by Defense Minister Sergey Shoigu’s commitment to mobilizing around 300,000 current reservists. Other sources suggest that closer to a million new troops are sought by the Defense Ministry, though that information is supposedly classified, and denied by the official Kremlin.

Within hours of the mobilization decree going into effect, large numbers of Russians were already receiving draft notices. The protests that erupted across Russia by the same evening made clear that, in spite of official warnings of criminal responsibility for anti-war public speech, many Russians openly oppose the war and reject the idea of sending more troops to Ukraine. For reservists subject to the draft, refusing to go to war and trying to make a case for exemption is a perilous personal decision.

Meduza spoke with a military attorney from the Russian Human Rights Defenders’ Coalition. Here’s our summary of the legal advice that reflects the plight of millions of Russians who are, as the Kremlin claims, now subject to the draft.

Which strategies to choose?

It’s difficult to give general advice to someone who fears being drafted in Russia, someone who doesn’t want to fight in Ukraine. No one can say what another person should do — leave Russia, go into hiding, or send a letter to the army recruitment office requesting that military service be replaced with alternative, civilian service (which is constitutionally legal). People have to choose which strategy to pursue — because anyone in the army reserve is fair game in the draft — and no strategy is fail-proof. Still, every person has the special right to defend one’s rights, by any means that are not themselves illegal.

It’s not illegal to disappear in the countryside and make no contact with the state. Often, a person’s actual address differs from their registered 'place of residence'. Young people subject to mandatory military training — the draft in ordinary times — have a duty to report their new address to the draft officers. But if they don’t, they would only be charged with an administrative violation — this wouldn’t even be a crime.

It’s not illegal to disappear in the countryside and make no contact with the state

The strategy of hiding is, of course, a product of this feeling that people have, that there’re no other means of defending themselves and their right not to go to war. It’s hard to know how effective hiding out might be. The one thing that’s sure is that the draft does not have paws big enough to reach everybody. The army reserve numbers on paper are far greater than the actual number of people within reach to be recruited. In any case, it would be completely understandable not to rush to meet the draft officer as soon as you hear the word 'mobilization'.

If you received your draft notice through Gosuslugi (the federal online paperwork service), this might as well have never happened. The law does not make any provisions for delivering a summons in this way. No one has an obligation to check their messages on that site, no one has to look for a notice there. Once upon a time you had an account, then you forgot your password. But if you complain about being summoned by that method, you will thereby acknowledge the summons. So it’s best to just ignore it. But be warned that they’re looking for you — and prepare to stand up for your convictions.

Don't open the door

If you live in Russia and they try to send you a summons but cannot reach you, nothing should happen to you — unless the police investigate, and find out that you wouldn’t open the door when at home, that you didn’t live at your registered address, and did not notify the draft office of having moved. If they can establish all this, it might give grounds to accuse you of evading the draft. There are very few past cases of draft evasion being prosecuted. Hundreds of thousands of people avoided joining the army, precisely in this fashion. Evasion is very hard to prove, and it’s unlikely that mobilization will change something here.

Moving to avoid the draft might seem tempting, but there’re complications to keep in mind. The current law concerning 'Mobilization preparations and mobilization in the Russian Federation' specifies that, in the event of mobilization, citizens registered for military duty — not just reservists, but also youngsters serving their mandatory army training terms, students with official deferrals in hand, women in professions subject to military duty — are all prohibited from leaving their place of residence. So, you cannot just take off to visit grandma. There’s no prescribed punishment for this, but you’d be breaking the rules.

Emigration is another loophole

Emigration is legally very different from moving. It might seem that you cannot leave the country without leaving your place of residence — it’s just common sense. But the law that regulates leaving and entering the Russian Federation contains an exhaustive list of reasons that would compromise your ability to leave the country. That list contains no mention of a situation where you cannot leave your place of residence and therefore mustn’t leave the country. What the law does say is that your right to leave might be limited if you’ve been drafted, or else have an alternative service duty. So, you’d have to be already drafted, not just subject to the draft, to be prevented from leaving.

Eurasian Customs Union countries — Armenia, Belarus, Kazakhstan, and Kyrgyzstan — will receive Russian citizens without an international passport. Other countries, too, should not bar you from entry just because you’re in the Russian army reserve. What can be tricky, though, is the application of the law. Under present circumstances, leaving your place of residence might be interpreted as a prohibition on leaving Russia. But there isn’t such a law just yet.

Russians living abroad are exempt from military duty. It’s true that not everyone declares that they’ve moved, as the law expects you should. If you remain a Russian resident on paper, a draft notice might be sent — but no one will be there to receive it. There would be nothing unlawful about that.

If, on the other hand, you’re a foreign citizen living in Russia, you might be encouraged to sign a military contract — they are recruiting foreigners quite actively these days — but you’re not subject to the draft. But if you happen to have a second, Russian citizenship — even if you already served in a foreign military — you’re once again fair game. Unless you’re a citizen of Turkmenistan or Tajikistan, countries that have a reciprocal agreement with Russia to recognize past military service. People who already served in the army in Armenia or Belarus, then moved to Russia and obtained a citizenship, may receive a summons.

At the draft office no one can defend you

Once you’re at the draft office, no one can defend you but yourself. Not the court, not the prosecutor’s office, not your lawyer — it’s you who has to decide whether you’re ready to stand up for your convictions. Are you ready to refuse — to sign your army ID, to wear a uniform, to submit to a medical exam, to pick up arms, to shave and cut your hair? A person who shows up at the draft office and claims to be a conscientious objector risks having his, or her, rights simply ignored. Still, the Constitution gives every citizen the special right to defend one’s rights — this is not illegal.

Any pacifist, any person with an anti-war position must be prepared to receive a summons. It’s essential that you write up your convictions in advance, making several copies, attaching a bio, and insisting that these be filed at the draft office and considered as a case for assigning an alternative form of service. Outside of mobilization context, this is a permissible request, and if denied, you can appeal in court. There are certain procedural guarantees that should enable you to defend your rights.

With mobilization, these guarantees fall away — and once you make it to the draft office, a court appeal might take longer than your journey to your unit. No one on the recruiting side is going to wait for a court decision. But if you’re really determined, it should be possible, at least in theory, to walk away with an exemption. The worst that you risk, after all, is a two-year prison term specified by the Criminal Code for those who refuse to serve.

There’re far fewer lawyers in this country than people whose right not to fight needs to be defended. If you’re able to hire a professional, go ahead and sign an agreement with a defense attorney, giving your lawyer a signed power of attorney to file documents on your behalf — complaints, appeals, queries to the Defense Ministry, etc.

Get a notarized proxy

If you cannot get a lawyer, get a notarized proxy for someone who cares for you — parents, significant other, friends, a lawyer you know, etc. — so that, in case you’re rounded up illegally, they could appeal to the military prosecutor’s office, to the court, to demand preliminary protection measures on your behalf, etc. Signing this proxy is something you must do, to enable others to help you if you’re being held inside a draft office, for example.

The law makes no provisions for arresting people on the streets, in airports, at train stations, in order to send them to the front. Even if you received your draft notice, this does not supply the grounds for detention. Rounding up someone on the pretext of mobilization is completely unlawful.

Still, what’s unlawful is not always impossible, and any erosion of the legal system may result in the kinds of abuses that we’ve already seen in the self-proclaimed Donetsk and Luhansk republics. Procedural abuses are symptoms of unlimited state power that has nothing to restrain it. But this has nothing to do with the law.

Three tiers in the military

There are three tiers of people in the military reserve. The first is for soldiers under 35. This is the first tier to be drafted. People of 35 and older make up the second tier, but what difference it makes is left to the discretion of the draft officials, who follow the directives of the military command. 300,000 new troops is not what you would call a modest goal. That’s why we can expect the tier system to make some difference in the way the draft is implemented. Besides, we don’t know for sure how many people they really hope to recruit.

Deferrals are also granted based on a tier system. For those registered in the army reserve, deferrals are regulated by the mobilization law. There’re no special allowances for students there — it’s all very rigid. You might get a deferral if you have four children, if you have disabled relatives in your care, if you’re the guardian of your own minor sibling — that’s it. If you have a child or your spouse is pregnant, you might be able to defer your mandatory term service. But if you’re in the reserve, you won’t.

If you’re not registered in the reserve but are of mandatory draft age, you can apply for a deferral of military duty as an undergrad or a grad student. But if you’re a student and you’ve been chalked up to the reserve based on your limited fitness for service (say, you’re in the fitness “category C”) — in theory, you are at risk for being drafted. Or take a graduate student who reached age 27, and, similarly, gets listed in the reserve. Or perhaps, he’s a graduate student who studied in a military department during his baccalaureate: at the end of his course of study, he received the rank of sergeant or lieutenant — and was listed with the reserve. If this is the case, he might be a grad student, but he will not get a deferral.

If you’re of 'limited fitness;  for service, the law is somewhat ambiguous. Evidently, everyone in “category E (unfit)” should be able to defer. But other categories of partial fitness will probably be sorted on a case-by-case basis. It’s unlikely that those people would all be drafted at once, but in the future, this might happen. If the medical exam shows that someone is acutely ill, the person might get a deferral — and still get drafted later. If you break your arm or get a concussion, the maximal deferral you’d get would cover you for six months.

Appeal your category

You can appeal your category assignment, though by the time your appeal is reviewed, you might already be in the army. So, this route is a bit complicated. What you can do is respond to the draft notice with a request to assign an alternative form of service — that is, a civilian alternative. Your request will receive a reply, and if that reply denies your right to alternative service, that denial would be something you could dispute in court. In any case, if you received a summons, respond to it by legal means. File a paper, a written complaint.

Suppose that you completed your mandatory term service when you were 20. Now you’re 45, you have a health condition. You get a summons. You can claim temporarily disability due to a health condition. Psychiatric disorders, HIV, drug dependency, serious forms of asthma, heart disease, conditions that interfere with your bodily systems’ functioning — all these will matter. And then, there is “fitness category E,” that is, “unfit for service.” These are all possible grounds for being removed from enlistment registries.

There’s an official Schedule of Diseases that specifies fitness categories based on any given diagnosis. If you can establish that you’re in categories “E” or “D,” you’re exempt from the draft and eligible for discharge. In this case, when you receive the summons, file a request to reassign your fitness category, attaching notarized copies of the medical records that confirm your diagnoses.

Without these documents, your in-person appeals to military medical examiners might simply be ignored. Of course, having already been summoned and standing before the medical commission, you could write a statement there and then, in two copies, explaining: 'I have such-and-such medical conditions, I have records at such-and-such a clinic, I request that those be obtained and considered before I am drafted'. Unfortunately, officials might ignore such a statement.

Still, it is important to write it out in two copies, handing one to the military commissariat that summons you. The second copy must be marked as received by the commissariat; a person in charge needs to sign it, confirming receipt, and you will keep it. All your requests must be throughly documented.

If you’re already in the unit, write a report on the worsening of your health, requesting a medical exam, demanding a reassignment of your fitness category and discharge on medical grounds.

Of course, our government is constantly tightening the bolts in the legal system. The new mobilization decree doesn’t even let contract soldiers with expired contracts go home. There’re now just three reasons for discharge from the military: you get too old, you get too sick, or you go to prison. It has to be admitted that exercising your right of refusal will be very hard. Insisting on this right will probably soon lead to criminal prosecution.

This article was first published by Meduza

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