Leonid Nikitinsky: Lawyers consider how to respond to the Moscow military officer who threatened them with prosecution for helping people evade enlistment
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25 September 2022

by Leonid Nikitinsky, journalist, Ph. D. in Law, winner of the Moscow Helsinki Group Prize

Source: Moscow Helsinki Group [original source: Новая газета. Европа]

On Friday, September 23, a copy of a letter appeared online that was written by Viktor Shepilov, Military Commissioner of Moscow, to Igor Polyakov, president of the Moscow Bar Association. Calling attention to offers made on social media for “legal services for the purpose of draft evasion,” the Commissioner warns that under Article 33 of the Russian Criminal Code, “assisting in evading military service, counseling on draft evasion, and mediating evasion” could be considered participation in a criminal act of a conscript, as qualified in Article 328 of the Russian Criminal Code.

On the same day, Rossiiskaya gazeta also published information about the letter, which was circulated online and signed by Shepilov, thus supporting its authenticity. The author of the piece alleges that, in addition to sending the letter to the Moscow Bar Association’s president, the Commissar has sent it to the association’s council and to “leaders of Moscow’s legal community.” The letter requests that they “articulate and circulate the legal community’s public position on the inadmissibility of assisting citizens in evading conscription.”

To date, none of the aforementioned agencies has received Shepilov’s letter, and there has also been no information from bar associations in other regions of Russia regarding similar letters. Nevertheless, the “leaders of the legal community” are alarmed at the threat of being prosecuted on charges of aiding and abetting, as well as at the potential for their colleagues to be mobilized, which also threatens their clients’ rights. They gathered over the weekend to “articulate their position” and outline a response to the commissioner, based on the Ilya Repin painting Reply of the Zaporozhian Cossacks. Here is the rough draft of their work:

Your Excellency, distinguished Major General of the Reserve!

Forced mobilization for military service should be regarded as essentially depriving a citizen of their liberty, as well as, in the long run, their life, in the absence of any indication of guilt. The legal community has not found any information in the Criminal Code you referenced that pertains to this, with the exception of Article 39, ‘Extreme Necessity’: ‘It is not a crime to cause harm to the interests protected by criminal law … in order to eliminate a danger directly threatening an individual and their rights, or the rights of others … if this danger cannot be eliminated by other means and the limits of extreme necessity have not been exceeded.’

The closest substantive analogy we see is in Article 235 of the Civil Code. Section 3 of this article mentions the possibility of expropriating land ‘due to its improper use,’ while Section 3.2 points out the potential for land to be expropriated for state or municipal needs.

However, continuing with Section 3 of Article 235, what criteria will the district military registration and enlistment offices apply in order to determine inappropriate use by conscripts of their freedom and life in general?

And if we use the analogy of Section 3.2, extending it to the seizure of freedom and life of individuals subject to conscription ‘for state needs,’ then what exactly are these needs, and whose needs are they?

According to Federal Constitutional Law No. 1 dated January 30, 2002, ‘On Martial Law,’ this special legal regime is to be introduced by presidential decree ‘in the event of aggression against the Russian Federation, or an imminent threat of aggression.’ It appears that the president does not see such a threat at the moment, as martial law has not been introduced throughout Russia or in any part of the country. The referendums on joining Russia held in Donetsk, Luhansk, and other regions of the neighbouring state indicate a normalization of the situation, since, in accordance with Section 4 of Article 7 of the Federal Constitutional Law No. 1 mentioned above, ‘referendums and government elections are not to be held in territories in which martial law is in effect.’

As we know from press reports, bodies within the international community (not the legal community) are raising the point of recognizing a number of actions committed involving the Russian armed forces on the territory of a known country as war crimes. Can you advise on whether or not Article 33 of the Criminal Code of the Russian Federation, which you mentioned, and which regards organizers, abettors, and facilitators as accomplices to crimes, will also apply to the actions taken by the Russian military enlistment office?

In articulating our position, the legal community is aware that no one, including military commissioners, was prepared for the so-called special operation, and as a result, the legal relationships involved in the mass/partial mobilization of a wide range of people are very contradictory. Lawyers in Moscow and around the world are prepared to fulfill their professional duties and provide legal services to all parties in these legal relationships.

Translated by Nina dePalma

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