RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of June 27, 2024 No. 3

About court practice on cases on crimes against procedure for execution of conscription, the direction and passing of alternative service (articles 435-437, 465-1 and 465-2 of the Criminal code of the Republic of Belarus)

Having discussed results of generalization of court practice of consideration of criminal cases about the crimes provided by articles 435-437, 465-1 and 465-2 of the Criminal code of the Republic of Belarus (further - UK), for the purpose of the correct and uniform application of the legislation the Plenum of the Supreme Court of the Republic of Belarus DECIDES:

1. Draw the attention of courts that the constitutional obligation and holy duty of the citizen of the Republic of Belarus is protection of the Belarusian state. The procedure for passing of military service, the basis and condition of release from military service or replacement of its alternative are determined by the law (article 57 of the Constitution of the Republic of Belarus).

Military accounting, conscription, service in reserve, appeal on military and special charges belong to forms of realization of conscription.

The correct application of the penal statute about responsibility for crimes opposes procedure for execution of conscription, the direction and passing of alternative service as important instrument for ensuring of protection of the rights, freedoms and legitimate interests of citizens, interests of society and state, is intended to promote holding actions at the call of on military service, to the prevention of crimes.

For the correct determination in acts of signs of the crime components provided by articles 435-437, 465-1 and 465-2 UK, courts need to address the corresponding regulatory legal acts establishing procedure for execution of conscription, the direction and passing of alternative service.

After age achievement of limit of appeal on military service only persons who committed this crime before achievement of age by them 27 years can be involved in criminal liability for evasion from actions at the call of on military service if prescriptive limits of attraction them to criminal liability did not expire.

5. Explain to courts that evasion from actions at the call of on military service (article 435 UK) is expressed in intentional non-execution by the citizen in the absence of reasonable excuses of the obligation assigned by the law to participate in such actions and hindrance to acceptance and (or) implementation of the decision of the district (city) draft commission (further - the draft commission), the military commissioner, the chief of the state security agency about execution of conscription by it.

Evasion from actions at the call of on military service (part 1 of article 435 UK) can be made, for example, in the way: absences according to the agenda on medical examination, meeting of the draft commission, in military commissariat or recruiting (combined) station for sending to the place of compulsory military service; absences on actions of the citizen who refused receipt of the agenda or the direction; absences of the citizen within five working days from the date of the termination of the circumstances interfering its appearance on actions, and non-presentations by it of documents, confirming the absence reasons.

6. In case of otgranicheniya of crime, stipulated in Article 435 UK, from administrative offense, stipulated in Article 26.1 Codes of the Republic of Belarus about administrative offenses (further - the Administrative Code), to courts to mean that citizens can be brought to the administrative responsibility if their absence without valid excuse on actions did not prevent acceptance and (or) implementation of the decision of the draft commission, the military commissioner, the chief of the state security agency about execution of conscription by them.

7. Draw the attention of courts that the citizen who evaded from actions at the call of on military service by the following methods can be brought to trial as regards the 2nd article 435 UK: by intentional causing to bodily harm, either simulation of disease, or forgery of documents or other deception.

Causing bodily harm can be expressed in intentional causing by the citizen to itself either at its request or from its consent of varying severity by other person of bodily harm in any manner.

Simulation of disease can be made by imitation by the citizen of disease or the image of its separate symptoms or exaggeration of symptoms of the available disease.

Representation in military commissariat of forgery documents for justification of respectfulness of the reasons of absence on actions can be referred to deception in the form of forgery of documents, in particular.

Other deception can be expressed in different forms, for example in the message of the draft commission of false information about itself, marital status.

8. Evasion from actions at the call of on military service (article 435 UK) begins from the date of intentional evasion without valid excuse from any of actions.

The moment of the termination of crime considered including in case of calculation of prescriptive limit of criminal prosecution, it is necessary to consider the expiration of the appeal established by the presidential decree of the Republic of Belarus, attracting impossibility of acceptance and (or) implementation of the decision of the draft commission, the military commissioner, chief of the state security agency about execution of conscription.

9. In case of the solution of question of guilt of the citizen in crime execution, stipulated in Article 435 UK, courts need to determine the fact of proper delivery to it the agenda or the directions (on receipt or the registered mail with the notification on obtaining including delivered (handed) by means of national post electronic system) about appearance on actions, and also absence at such person of reasonable excuses of absence.

In case of evasion from such actions citizens can be brought to trial under article 435 UK if the term of delay expires in the period of the next appeal and absence prevented decision making of the draft commission about execution of conscription by them.

In case of evasion of such citizens from sending from recruiting (combined) station to the place of compulsory military service and hindrance of implementation of the decision of the draft commission on execution of conscription of their action can be qualified under article 435 UK.

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