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.

2. To courts to mean that legal relationship in spheres of execution of conscription, alternative service are regulated by the Constitution of the Republic of Belarus, the laws of the Republic of Belarus of November 5, 1992 No. 1914-XII "About conscription and military service" (further - the Law on conscription), of June 4, 2015 No. 276-Z "About alternative service", the Regulations on military accounting approved by the resolution of Council of Ministers of the Republic of Belarus of December 18, 2003 No. 1662, the Regulations on procedure for passing of military and special charges approved by the resolution of Council of Ministers of the Republic of Belarus of January 27, 2004 No. 78, the Regulations on military accounting in the state security agencies approved by the resolution of Council of Ministers of the Republic of Belarus of January 28, 2011 No. 101, Regulations on appeal of citizens on compulsory military service, service in reserve the approved resolution of Council of Ministers of the Republic of Belarus of November 4, 2019 No. 741, other acts of the legislation.

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.

3. Explain to courts that the subject of crime, stipulated in Article 435 UK, special - citizens of the male Republic of Belarus aged from 18 up to 27 years, the citizens of the male Republic of Belarus consisting or obliged to stay on the military registry and not consisting in inventory, and equally aged up to 27 years who were trained according to programs of training of reserve officers at military departments or faculties passed the final examinations enlisted in inventory and having military rank of the officer (paragraphs two and third parts one of article 30 of the Law on conscription).

Proceeding from provisions of part two of article 36 of the Law on conscription, the decision on conscription, service in reserve it can be accepted only concerning the citizens who reached 18 years.

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.

4. By consideration of criminal cases about evasion from actions at the call of on military service (article 435 UK) courts should consider that appeal of citizens on compulsory military service, service in reserve, and also appeal of citizens on military service of officers at the call of are carried out to the terms established by the corresponding presidential decrees of the Republic of Belarus (parts one and the second article 33 of the Law on conscription). The list of actions at the call of on military service (further, if is not provided other, - actions) established by parts one and the fourth article 34 of the Law on conscription is exhaustive.

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.

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