Defense of the Fatherland: Conscription for Military Service on Mobilization

Manin Iaroslav PhD in Law Associate Professor, Department of Legal Studies and Practical Jurisprudence, Institute for Social Sciences of The Russian Presidential Academy of National Economy and Public Administration 119571, Russia, Moscow, Vernadsky Prospekt, 82, building 2 manin-yv@ranepa.ru Other publications by this author

Protection of the Fatherland is a constitutional duty and obligation of every Russian citizen (paragraph 1 of Article 59 of the Constitution of the Russian Federation)^[1]. How to understand this rule of law for proper implementation? What does the civic duty to protect the Fatherland mean? How to fulfill the corresponding duty of a citizen? This and much more will be discussed in our article in the light of current historical events.

The concept of "Fatherland" is mentioned four times in the Constitution of Russia: firstly, in the preamble, when it comes to the multinational people of the Russian Federation honoring the memory of their ancestors who gave them love and respect for the Fatherland; secondly, in the constitutional norm of paragraph 1 of Article 59 already cited by us; thirdly, twice in paragraph 3 of Article 67.1, which indicates the inadmissibility of diminishing the significance of the feat of the people in the defense of the Fatherland, whose defenders are honored by the Russian Federation.  

The explanatory dictionary of the Russian language understands the concept of "Fatherland"^[2] as a state of which a person is a citizen. Therefore, Russian citizens must and must protect the Russian Federation. In the same place, the concept of "protection" is interpreted as a synonym for the concept of "defense".^[3] So the Russians must defend their state from attack – defend it. The concept of "debt"^[4] in paragraph 1 of Article 59 is used in the meaning of "duty" to strengthen the concept of "duty" as its synonym, and not as an obligation arising from property legal relations, including monetary civil legal obligations. The duty to protect the Fatherland arises immaterial – personal non-property from the legal fact of being a citizen of the Russian Federation. "Defense"^[5] in this case is understood as a military duty to participate in hostilities in order to disrupt or repel the enemy's offensive. Defense can consist in repelling the onslaught of the enemy – repelling an attack, as well as in preventing such an attack by deterring the enemy when his attack is threatened, in disrupting this attack, or in attacking the enemy to prevent an attack from his side ^[6] – preventive defense^[7].

Thus, the meaning of paragraph 1 of Article 59 of the Constitution of Russia is that Russian citizens are obliged to defend the Russian Federation by armed means both from the enemy attacking it and from a potential real threat from a possible enemy. For example, in 1967, Israel, as noted by I.Z. Farkhutdinov, carried out the very first major pre-emptive military strike on the accumulation of the Egyptian army and not only. The armed forces of five states: Egypt, Lebanon, Syria, Jordan, Iraq, on the initiative of Egyptian President Abdel Nasser, gathered weapons, military equipment and manpower of the collective Arab East to strike at Israel. The Air Force of the State of Israel and other military formations launched a preemptive strike on the enemy in self-defense, ending the armed Arab-Israeli conflict in six days. Self-defense of States is permitted by Article 51 of the Charter of the United Nations.^[8] Israel was justified by the world community and introduced into its military doctrine the right to unleash a pre-emptive war.^[9] The doctrine of preventive defense and security of the State of Israel^[10] was borrowed by the United States of America^[11] as a concept of proactive or preventive self-defense (or tested on an Israeli base before implementation).^[12] It gradually began to be reflected in the actual activities, and then in the national security strategy of the United States of America.^[13] Yugoslavia was a striking example of the implementation of this American strategy.^[14] The hegemon has repeatedly used force outside its territory, justifying its use in the interests of national security. Self–defense to prevent an enemy attack is gradually becoming an element of the national security doctrines of States, turning into a universal principle - the concept of preventive self-defense. It is impossible not to agree with A.V. Yashina, who justifies this process with globalization.^[15] The Russian Federation, in turn, seeks to avoid the unjustified use of force and does not include preventive defense (proactive self-defense) as a principle or element of its national security. Decree of the President of the Russian Federation No. 400 of July 2, 2021 "On the National Security Strategy" does not contain provisions on the preventive use of military force.^[16] This means that the Russian state will respond only to an armed invasion, violation of its territorial integrity, sovereignty – acts of aggression, but will not launch a pre-emptive strike, despite the established universal approach in foreign countries. Russia should have legal principles and norms that allow the preventive use of military force abroad for self-defense, but they are not. We propose to introduce the corresponding principle into the national concept of national security, and the necessary norms to ensure proactive self–defense - into the Federal Law "On Defense".The Russian Federation uses force outside its territory only on the basis of international treaties.

For example, the senators unanimously approved the use of Russian Armed Forces in Syria.^[17] In accordance with paragraph "d" of Part 1 of Article 102 of the Constitution of the Russian Federation, on February 22, 2022, the Federation Council of the Federal Assembly of the Russian Federation gave consent to the President of the Russian Federation to use the Armed Forces of the Russian Federation outside the territory of the Russian Federation on the basis of generally recognized principles and norms of international law.^[18]

Thus, by Decree of the President of Russia dated February 21, 2022 No. 71 "On the recognition of the Donetsk People's Republic" and Decree of the President of Russia dated February 21, 2022 No. 72 "On the recognition of the Luhansk People's Republic", the respective former regions of Ukraine were recognized as sovereign and independent states.

The Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Donetsk People's Republic of February 21, 2022, ^[19] and the Treaty of Friendship, Cooperation and Mutual Assistance between the Russian Federation and the Luhansk People's Republic of February 21, 2022, ^[20] entered into force on February 25, 2022. Articles 2-4 of the listed treaties presuppose the interaction of the contracting parties in terms of protecting the sovereignty, territorial integrity and security of the Russian Federation, the Donetsk People's Republic and the Luhansk People's Republic, including mutual military assistance to counter acts of aggression by another State or group of States in the exercise of the right to individual or collective self–defense in accordance with Article 51 The Charter of the United Nations. Since the entry into force of these agreements, a special military operation has begun, announced by the Russian president on February 24, 2022.^[21]

In the Donetsk People's Republic, the Luhansk People's Republic, as well as in the Kherson and Zaporozhye regions of Ukraine, referendums were held from October 22 to 27, 2022, recognized as having taken place. On the basis of the referendums held, two new subjects of international law emerged: the Zaporozhye region, the Kherson region. The Donetsk People's Republic (proclaimed on April 7, 2014), the Luhansk People's Republic (proclaimed on April 27, 2014), referendums on their self-determination were held on May 11, 2014, and on February 21, 2022, the republics were recognized by the Russian Federation as subjects of international law. Decree of the President of Russia No. 685 of September 29, 2022 "On the recognition of the Zaporozhye region"^[22] and Decree of the President of Russia No. 685 of September 29, 2022 "On the recognition of the Kherson region"^[23] in accordance with the generally recognized principles and norms of international law, the principle of equality and self-determination of peoples, state sovereignty and independence were recognized Zaporozhye and Kherson regions.

The Donetsk People's Republic, the Luhansk People's Republic, the Zaporozhye Region, the Kherson Region (four sovereign and independent states – four subjects of international law), on the basis of the will of their citizens expressed through a plebiscite, expressed a desire to join the Russian Federation as subjects, which was signed on September 30, 2022 in the St. George Hall of the Grand Kremlin Palace agreements on the admission of the listed states to Russia and the formation of new subjects of the Russian Federation.^[24] The Constitutional Court of the Russian Federation, by resolutions No. 36-P^[25], No. 37-P^[26], No. 38-P^[27], No. 39-P^[28], recognized the agreements concluded on September 30, 2022 between the Russian Federation and four adopted in its composition by sovereign states corresponding to the Constitution of the Russian Federation. In addition, the court justified the application of these treaties, and, as a consequence, the emergence of the status of Russian regions among the states admitted to the Russian Federation not from the moment of entry into force of the relevant international treaties after their ratification, but from the moment of their signing – on September 30, 2022. Consequently, on the specified day, based on the legal position of the Constitutional Court of the Russian Federation, four new subjects were formed within the Russian Federation: the Donetsk People's Republic, the Luhansk People's Republic, the Zaporozhye Region, and the Kherson region.

On October 3, 2022, the State Duma of the Federal Assembly of the Russian Federation ratified^[29] the above-mentioned treaties signed by the President of the Russian Federation on the last day of September of this year, the relevant laws have already been published ^{[30] [31] [32] [33]}.

The formation of new subjects of the Russian Federation on the basis of independent states – the Donetsk People's Republic, the Luhansk People's Republic, the Zaporozhye region, the Kherson region means the termination of a special military operation on their territory, together with Treaties on friendship, Cooperation and mutual assistance concluded with the republics admitted to the Russian Federation. At the same time, all citizens of the Russian Federation are obliged to protect the new Russian subjects on the basis of paragraph 1 of Article 59 of the Constitution of the Russian Federation starting from September 30, 2022. However, the consent of the Federation Council of the Federal Assembly of the Russian Federation, given on February 22, 2022 to the President of the Russian Federation for the use of the Armed Forces of the Russian Federation outside the territory of the Russian Federation, continues to be valid, since the international treaties that served as the basis for the appeal of the President of Russia to the senators included provisions not only on the defense of the Donetsk People's Republic and the Luhansk People's Republic, but also and about the individual defense of the Russian Federation, ensuring the security, sovereignty and territorial integrity of the Russian Federation as a contracting party. The legal purpose of using force abroad has not been achieved, therefore the Russian President has the right to continue using the Armed Forces of the Russian Federation outside the territory of the Russian Federation without the additional consent of the Federation Council of the Federal Assembly of the Russian Federation.The duty of Russian citizens to defend their state is realized by performing military service (paragraph 2 of Article 59 of the Constitution of the Russian Federation), which is implemented in accordance with the Federal Law "On Military Duty and Military Service" at the expense of military duty of citizens of the Russian Federation.

 The military duty of citizens of the Russian Federation (hereinafter referred to as citizens) provides for:

· first, military registration;

· secondly, mandatory training for military service;

· third, conscription;

· fourth, the passage of military service on conscription;

· fifth, stay in stock;

Sixth, conscription for military training and the passage of military training during the period of stay in reserve.

The military duty of citizens is additionally regulated in three cases: firstly, during the period of mobilization; secondly, during martial law; and thirdly, during wartime. During such periods, it is determined by federal constitutional laws, federal laws, and other regulatory legal acts of the Russian Federation. The military duty of citizens at the same time includes three types of conscription:

· first, conscription for military service on mobilization,

· secondly, conscription during martial law;

· third, conscription in wartime.

Citizens of the Russian Federation, in addition to military service on conscription and under contract, undergo military service in the Armed Forces of the Russian Federation in three more cases:

· first, during the mobilization period;

· secondly, during the period of martial law;

· thirdly, in wartime.

These three types of service are included in the military duty of citizens together with training during martial law and in wartime. I note that training during the mobilization period is not provided by the legislation.

The right of citizens to undergo alternative civil service (paragraph 2 of Article 59 of the Constitution of the Russian Federation) is realized only in exchange for military service on conscription on the basis of the Federal Law "On Alternative Civil Service". This means that it is impossible to replace military service on mobilization, military service during martial law, as well as military service in wartime with alternative civilian service. Meanwhile, by Decree of the President of the Russian Federation No. 647 of September 21, 2022 "On the announcement of partial mobilization", partial mobilization was announced in the Russian Federation from September 21, 2022, and the conscription of Russian citizens for military service for mobilization into the Armed Forces of the Russian Federation began.

At the same time, the head of state did not set a limit on the number of mobilized, which makes it possible to mobilize reservists almost completely. In any case, "partial mobilization" implies the mobilization not of the "whole", but of the "share" or "part" of the whole – the mobilization human reserve. The wording of the first and second paragraphs of the presidential decree under study makes it possible to call for military service on mobilization of all reservists with the exception of one person, in which case the mobilization will formally remain partial. In essence, it is necessary to define the concept and criteria of general and partial mobilization, which we propose to do to the legislator. The ambiguity of the number of mobilized, on the one hand, disorients and misinforms the enemy, on the other hand, puts the citizens of the Russian Federation, who make up the mobilization human reserve, in a state of uncertainty, which has, first of all, social consequences. The legal structure applied by the Supreme Commander-in-Chief makes it possible not to declare "waves" (stages) of mobilization, but to carry out a permanent call within the framework of the already announced partial mobilization, depending on the situation and the needs of the Armed Forces of the Russian Federation in personnel.         

Determining the status of mobilized citizens, the President of Russia, in the second and third paragraphs of the decree under consideration, equated them with military personnel serving in the Armed Forces of the Russian Federation under a contract with an appropriate level of monetary maintenance. I would like to note that the main features of contract service in accordance with Articles 32-34 of the Federal Law "On Military Duty and Military Service" are:

firstly, voluntary;

secondly, the urgency;  

third, retribution;

fourth, medical, physical, professional fitness and others.

However, there is no voluntariness in concluding contracts for military service on mobilization, they are a priori concluded with conscripts subject to conscription, that is, in the absence of the will of the conscript as a party to the contract. Such contracts are concluded by the decision of the state, which, it would seem, entails their initial insignificance due to the presence of a vice of the will. Volunteers can enter into a contract for military service without conscription for mobilization and perform military service under a contract, but not under a contract for military service for mobilization. The reserves are mobilized by the President of Russia because of their duty to protect the Fatherland, and not of their own free will, which is fundamental. Self-awareness and voluntariness may partially characterize the actions of those called up from the reserve of the Armed Forces of the Russian Federation to conclude the analyzed contracts, but they do not independently, but on the call of military commissariats, leave peaceful life and are recruited into the ranks of military personnel in a public legal order on the basis of a sole decision of the President of the Russian Federation, that is, as a result of an administrative volitional (managerial) act.        

Contracts for military service on mobilization are terminated only by age, by the decision of the military medical commission or as a result of the deprivation of liberty of a serviceman, their validity period is determined by the onset of the legal fact of the event - the end of the period of partial mobilization. The President of Russia does not set the duration of this period, which eliminates the criterion of urgency of mobilization contracts.

Meanwhile, the call for mobilization in some cases is carried out without a medical examination based on the conclusions of previously conducted medical commissions and the categories of validity specified in military tickets, sometimes this happens despite the expiration of the statute of limitations of decisions on the suitability of reservists for military service, which deprives the mobilization contract of another sign of contract service.

Professional suitability for mobilization is determined formally, and not based on the real needs of the Armed Forces of Russia, which once again discredits the decision of the President of Russia to extend the status of military personnel under contract to those mobilized from the reserve. The physical and moral-psychological fitness of the mobilized is not determined. Thus, it is impossible to draw a conclusion about the authenticity of the statuses of a contract serviceman and a mobilized Russian citizen. However, the legal purpose of giving the mobilized the status of "contract workers" within the framework of the presidential decree is the social protection of persons called up for mobilization, which is fully satisfied by the legal structure applied by the head of state. The President of Russia equated the mobilized citizens not to conscripts, but to military personnel under contract, implementing the provision of the seventh article of the Russian Constitution on the social state and ensuring a decent human life.

We believe that the legal purpose of extending the status of contract servicemen to citizens of the Russian Federation who are conscripted and undergoing military service on mobilization is social. The legal fiction introduced by the President of Russia and investigated in his decree provides social protection for the mobilized, and the absence of some signs of a contract for military service in contracts for military service on mobilization does not entail the insignificance of the latter because of the difference in the legal purposes of their conclusion, as well as because of the difference in their legal nature. Social guarantees of mobilized citizens are only formalized by appropriate contracts, but the call of such citizens is carried out in a public legal order. The contract for military service on mobilization has a public legal nature and has no civil (private) legal principles that could lead to its invalidity. Payment under mobilization contracts performs a public legal compensatory function, being a social payment, and military service under the contract, provided for by the fifth section of the Federal Law "On Military Duty and Military Service", is paid as a professional activity of the military, representing essentially a salary, that is, the remuneration of a civil servant.The conclusion from the above is as follows: the legal statuses of "mobilized" and "professional contractor" have different legal nature, especially in terms of their occurrence, and different, but overlapping, legal content.

Even if only because these statuses are not identical, that it is impossible to call for contract service. These inauthentic statuses intersect in content, the formal equality of which is proclaimed by the head of state, in order to satisfy the public legal interest of the Russian Federation, including to ensure the defense of the country and the security of the state, as well as for other legitimate purposes. It should be noted that amendments to the thirty-third chapter of the Criminal Code of the Russian Federation ("Crimes against military service") introduced by Federal Law No. 365-FZ of September 24, 2022 "

On Amendments to the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation” apply only to military personnel. Consequently, citizens of the Russian Federation called up for mobilization can be subjects of crimes, the compositions of which are contained in the thirty-third chapter of the Russian Criminal Code, ONLY FROM THE MOMENT THEY HAVE THE STATUS OF A CONTRACT SERVICEMAN. Decree of the President of the Russian Federation No. 647 of September 21, 2022 "On the announcement of partial mobilization" (paragraphs 2 and 3) extended to citizens of the Russian Federation undergoing military service on mobilization the status of military personnel undergoing military service in the Armed Forces of the Russian Federation under contract. This means that those mobilized to responsibility within the framework of the elements of crimes of the thirty-third chapter of the Criminal Code of the Russian Federation can be brought only from the moment of entry into force of contracts for military service on mobilization. THE STATUS OF A SERVICEMAN ARISES FOR A CITIZEN OF RUSSIA, CALLED UP FOR MOBILIZATION, FROM THE MOMENT THE CONTRACT ON MILITARY SERVICE FOR MOBILIZATION ENTERED INTO FORCE.

Meanwhile , one can object to the legal position presented by us as follows: "The application of the criminal law by analogy is not allowed. The criminality of the act, as well as its punishability and other criminal-legal consequences are determined only by the Criminal Code of the Russian Federation" (Article 3 of the Criminal Code of the Russian Federation).Crimes against military service are recognized as crimes provided for by the thirty-third chapter of the Criminal Code of the Russian Federation against the established procedure for military service, committed by military personnel undergoing military service on conscription or under contract, as well as by citizens staying in reserve during their military training (Article 331 of the Criminal Code of the Russian Federation).

Thus, the mobilized citizens are not included in the circle of subjects of crimes provided for by the thirty-third chapter of the Criminal Code of the Russian Federation, since the decrees of the Russian President cannot contain criminal law norms and expand the circle of subjects of crimes, including extending the analogy of the law to the mobilized by giving them the status of persons undergoing military service under contract. The problem of an ambiguous understanding of the range of subjects of crimes provided for by the thirty-third chapter of the Criminal Code of the Russian Federation: "Crimes against military service" should be resolved by the legislator by clarifying Article 331st of the Criminal Code of the Russian Federation, which we propose. The moral and political significance, as a proletarian legacy of socialist legality, has an accusatory bias in the interpretation of Article 331 of the Criminal Code of the Russian Federation in the light of the designated presidential decree, but a formal legal interpretation allows you to build an exculpatory logic. If we do not apply political expediency, then we tend to believe that objectively mobilized citizens are not subjects of crimes provided for in articles of chapter 33 of the Russian Criminal Code. But, in any case, responsibility under these articles cannot occur before the entry into force of the contracts concluded by them for military service on mobilization. Thus, it is unequivocal that a citizen of the Russian Federation called up for mobilization is not a special subject of crimes against military service until the moment of the emergence of the status of a serviceman undergoing military service in the Armed Forces of the Russian Federation under a contract, that is, before the entry into force of the contract concluded with him on military service for mobilization.

By virtue of paragraph 3 of Article 1 of the Federal Law "On Military Duty and Military Service", citizens are exempt from military duty, the content of which is disclosed in paragraphs 1 and 2 of Article 1 of the Federal Law "On Military Duty and Military Service". Paragraphs 1 to 3 of Article 23 of the Federal Law "On Military Duty and Military Service" contains grounds for exemption from conscription for citizens of the Russian Federation who are not in reserve – male citizens aged 18 to 27 years who are on military registration or not, but are obliged to be on military registration and those who are not in reserve, that is, for conscripts in the framework of military service.

Citizens deemed unfit for military service for health reasons are exempt from performing military duty on the basis of paragraph 4 of Article 23 of the Federal Law "On Military Duty and Military Service", other persons have military duty, and I can only have a postponement, as, for example, in the case of mobilization. Proceeding FROM this, WE CONSIDER IT REASONABLE TO RELEASE SCIENTISTS FROM MILITARY DUTY. The number of scientists – Russian citizens who have an academic degree provided for by the state system of scientific certification is about one hundred thousand people: 75,000 candidates of sciences and 25,000 doctors, ^[38] out of 145,557,576 people – the population of the Russian Federation at the beginning of this year, 2022. The share of scientists in the Russian population is approximately 0.00068701 percent. And these 0.0007 – seven ten thousandth percent of the population of the Russian Federation must be preserved, protected as the apple of the eye to ensure the development of the state, its economy, and the reproduction of human resources. Science is the engine of sustainable development of society, and if the state sends future physics professors to the trenches who are not booked for the enterprises of the military-industrial complex, then the state will not have a future, it will not be able to compete with other powers due to the shortage and depletion of intellectual resources. Another thing is that in order to award academic degrees, it is necessary to develop strict criteria that exclude getting into academic science through corruption and other illegal means. The Russian Federation undoubtedly needs high–quality scientific personnel, and there can be no question of their mobilization, given the fact that a significant part of scientists are women, many domestic scientists are older than the age limit for conscription in the first and second categories, but still scientists receive summonses from military commissariats or through personnel units and military-accounting tables of higher educational institutions and scientific organizations. With such an attitude to science, to scientific and pedagogical personnel, the attitude of individual employees of the state apparatus to Russia, whose future is being undermined by those calling for the mobilization of scientists, is questionable. Maybe they are deliberately destroying the intellectual potential of the Russian Federation as enemies of the people and the state on the instructions of the collective West, taking scientists away from work and endangering their lives and health in the circumstances? It is difficult to single out unnecessary scientific directions, for the harmonious development of the state, all generally recognized branches of scientific knowledge are needed. It is no coincidence that the Russian Academy of Sciences stood up for candidates and doctors of sciences, offering them a postponement from conscription for mobilization.^[39] The scientists were also perplexed by the fact that they, being mostly scientific and pedagogical workers, are subject to conscription, while their students first of all received a presidential reprieve, which seems socially unfair, undermining the authority of the government, which discredits itself with such decisions.  

The Ministry of Digital Development, Communications and Mass Communications of the Russian Federation has published a list of 195 specialties in the fields of IT and communications, for which a postponement from mobilization is recommended.^[40] The order of the Ministry of Digital Development, Communications and Mass Media of the Russian Federation dated September 26, 2022 No. 712^[41] identified the need for qualified personnel, which has not been done with regard to scientists. The Government of the Russian Federation, by Resolution No. 490 of March 28, 2022, approved the "Rules for granting the right to receive a deferral from conscription to citizens of the Russian Federation working in accredited organizations^[42] engaged in activities in the field of information technology" concerning the granting of a deferral to military service from 18 to 27 years of military conscription. The same criteria are proposed to be applied to granting them a deferral from conscription, which will lead to the receipt of such a deferral by employees of more than 19,000 legal entities in 195 specialties. Granting any deferrals from military service, especially from conscription, to employees of organizations accredited by the Ministry of Digital Development, Communications and Mass Communications of the Russian Federation will lead to outright corruption (bribery and commercial bribery – depending on the form of ownership of accredited legal entities) in order to evade conscription. Comparing the level of development of domestic digital technologies in comparison with the analogues of the collective West, such management decisions seem doubtful, especially against the background of the lack of delays for scientists, including those preparing personnel for the digital economy. The mass media report about 70,000 IT specialists immigrating from the Russian Federation and another 100,000 immigration forecast. Consequently, Russia is becoming a training ground for training and practical training of IT specialists for the collective West, providing them with a reprieve from military service, discriminating against other professions, allowing digital economy personnel to leave their homeland. And aren't the initiators of such decisions agents of influence of the collective West? It is possible to predict the abandonment of the Fatherland by scientists, whose deferrals are forced to ask the leadership of the Russian Academy of Sciences, and whom we propose to completely exempt from military duty.The Ministry of Defense of the Russian Federation, in order to ensure the work of certain high-tech industries, as well as the financial system of the Russian Federation, decided not to enlist in military service as part of the partial mobilization of citizens with higher education in the relevant specialties and training areas, working:

· in accredited organizations engaged in activities in the field of information technology and involved in the development, development, implementation, maintenance and operation of solutions in the field of information technology and ensuring the functioning of information infrastructure;

· in Russian telecom operators and those involved in ensuring the stability, safety and integrity of the functioning of communication facilities, data processing centers, as well as public communication facilities and lines of the Russian Federation;

·         in system-forming organizations in the field of information and communications, as well as their interdependent persons who are the founder and (or) editorial office and (or) publisher of a registered mass media and (or) broadcaster of a TV channel, radio channel and involved in the production and (or) distribution of mass media products;

· in organizations that ensure the stability of the national payment system and financial market infrastructure, bank liquidity management, cash circulation.

The lists of citizens submitted by the heads of the relevant organizations in the prescribed form to the General Staff of the Armed Forces of the Russian Federation will be considered the basis for exemption from attracting citizens to conscription for military service on mobilization. ^[43] The described decision is not formalized by a legal act, is not a reservation, but has only signs of booking citizens and is subject to entry into the necessary regulatory legal act of the Russian president or government, or into the relevant federal law.

The Government of the Russian Federation adopted Resolution No. 1725 dated September 30, 2022 "On Approval of the Rules for Granting the Right to Receive a Deferral from Conscription for Mobilization to Citizens of the Russian Federation Working in organizations of the Military-industrial complex"^[44], which applies to legal relations that have arisen since September 21, 2022. The right to receive a deferral from conscription for military service on mobilization in accordance with the Decree of the President of the Russian Federation dated September 21, 2022 No. 647 "On the announcement of partial mobilization in the Russian Federation" is granted to the following categories of citizens of the Russian Federation - managers, specialists and workers working in organizations and participating in the performance of tasks of the state defense order. The list of organizations is developed by the Ministry of Industry and Trade of the Russian Federation, broken down by subjects of the Russian Federation, taking into account the proposals of the State Atomic Energy Corporation Rosatom and the State Corporation for Space Activities Roscosmos, approved within 5 days from the date of entry into force of the rules under consideration and sent to the Ministry of Defense of the Russian Federation. Extracts from the list of organizations are brought by the Ministry of Defense of the Russian Federation to the military commissariats of the relevant subjects of the Russian Federation within 3 days after receiving the specified list of organizations. Deferral from conscription for military service on mobilization is granted to citizens by conscription commissions for the mobilization of citizens on the basis of lists of citizens sent by the heads of organizations within 3 days after receipt of the specified lists of citizens. The lists of citizens indicate the surname, first name and patronymic (if any) of citizens, the year and place of their birth, the category from among those specified in paragraph 2 of the rules under consideration, as well as the degree of their participation in the performance of tasks of the state defense order. Organizations in which citizens who have received a deferral from conscription for mobilization work are obliged to inform the relevant military commissariat about this within a week from the date of dismissal of such citizens.

A significant number of legal entities, in order to assist their employees in evading conscription, send them on business trips, including abroad, assist in evading conscription in other ways, including intentionally not handing over summonses to employees. Military commissariats unsuccessfully try to demand the recall of seconded mobilizees, to hand over summonses through the second departments or military accounting desks of organizations, but massively - unsuccessfully.     

Article 21.2 of the Code of Administrative Offences of the Russian Federation provides for the responsibility of employers for failure to notify their employees about the summons of the military commissariat, including for the purpose of mobilization. Responsibility for this administrative offense is borne by the head or other official of the organization responsible for military accounting work, as well as for the failure of citizens to timely appear on call on the agenda of the military commissariat or other body carrying out military registration. The sanction of the above article provides for the imposition of an administrative fine in the amount of one thousand to three thousand rubles. Cases of administrative offenses provided for in Articles 19.25, 21.1 – 21.7 of the Code of Administrative Offenses of the Russian Federation are considered by military commissariats represented by military commissars, military commissars of municipalities, as well as heads of departments of military commissariats of municipalities on the basis of Article 23.11. of the Code of Administrative Offenses of the Russian Federation. Thus, employers are held accountable for their failure to fulfill the obligations provided for in paragraph 6 of Article 1 of the Federal Law "On Military Duty and Military Service" under Article 21.2. of the Code of Administrative Offences of the Russian Federation directly military commissariat.On the basis of Article 21.5. of the Code of Administrative Offences of the Russian Federation, the non-appearance of a citizen who is or is obliged to be on military registration, on a call (summons) of the military commissariat or other body carrying out military registration, at the prescribed time and place without a valid reason, failure to appear at the military commissariat for military registration, removal from military registration and amendments to military registration documents when moving to a new place of residence located outside the territory of the municipality, a place of stay for a period of more than three months or leaving the Russian Federation for a period of more than six months or entering the Russian Federation, as well as failure to report within the prescribed period to the military commissariat or to another body a person who carries out military registration, about a change in marital status, education, place of work or position, about moving to a new place of residence located within the territory of a municipality, or a place of stay entails a warning or the imposition of an administrative fine in the amount of five hundred to three thousand rubles. Citizens who have committed the specified administrative offense, as well as an administrative offense having a similar sanction (punishment) and provided for in Article 21.6. of the Code of Administrative Offenses of the Russian Federation for evading medical examination or examination in the direction of the commission for the registration of citizens for military registration or from medical examination in the direction of the draft commission are held accountable by the military commissariat, as and employers who promote draft dodgers.The limitation period for bringing to administrative responsibility under Articles 19.25, 21.1 – 21.7 of the Code of Administrative Offences of the Russian Federation is established in Article 4.5. of this Code. The decision on the case of an administrative offense provided for in articles 21.2. and 21.5. cannot be issued by the military commissariat after two months from the date of the commission of the relevant administrative offense, since none of them is lasting. Thus, bringing to administrative responsibility of citizens and their employers for administrative offenses committed by them in the field of military registration by military commissariats is possible only within two months from the moment of committing these offenses.  The military commissar of Moscow warned the lawyers about the responsibility for opposing mobilization. ^[45] It should be noted that there is no legal liability, including for complicity, except for the administrative liability we have cited for offenses in the field of military registration. The activities of lawyers to provide legal assistance to those being mobilized, as well as the evasion of conscription by Russian citizens, are not provided for by criminal legislation as crimes, including Articles 280.3. "Public actions aimed at discrediting the use of the Armed Forces of the Russian Federation in order to protect the interests of the Russian Federation and its citizens, maintaining international peace and security or execution by state bodies of the Russian Federation of their powers for the specified purposes" and 328 "Evasion from military and alternative civil service" of the Criminal Code of the Russian Federation, as well as Federal Law No. 365-FZ of September 24, 2022 "On Amendments to the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation". The Prosecutor's Office of the Chelyabinsk Region clarifies that Article 328 of the Criminal Code of the Russian Federation assumes criminal liability of males aged 18 to 27 years, who are charged with the duty of serving in the armed forces and evading such a duty.^[46] A similar position is held by the Prosecutor's Office of the Yamalo-Nenets Autonomous Okrug ^[47], the Prosecutor's Office of the Irkutsk Region ^[48], the Prosecutor's Office of the Omsk Region ^[49], the Prosecutor's Office of the Kemerovo Region – Kuzbass ^[50], the Prosecutor's Office of the Vladimir Region ^[51], the Prosecutor's Office of the Chuvash Republic ^[52], the Prosecutor's Office of the Tula Region ^[53], Babushkinskaya Interdistrict Prosecutor's Office of Moscow^[54] and other territorial divisions of the Prosecutor General's Office of the Russian Federation.

The Prosecutor's Office of the Moscow Region ^[55] refers to the Resolution of the Plenum of the Supreme Court of the Russian Federation of 03.04.2008 No. 3 (ed. of 23.12.2010)  "On the practice of consideration by the courts of criminal cases on evasion from conscription and from military or alternative civil service," which states that the subjects of the crime provided for in Part 1 of Article 328 of the Criminal Code of the Russian Federation are male citizens who have reached the age of 18 years, are or are required to be on military registration and those who are not in reserve, who are subject to conscription for military service in accordance with the procedure established by law. The Supreme Court of the Russian Federation believes that when considering criminal cases related to evasion of conscription, it should be borne in mind that, in accordance with paragraph 1 of Article 22 of the Federal Law "On Military Duty and Military Service", male citizens aged 18 to 27 years are subject to conscription. Therefore, after reaching the age of 27, only persons who have committed this crime before the specified age may be subject to criminal prosecution for evading conscription, provided that the statute of limitations for bringing them to criminal responsibility has not expired.

Thus, part 1 of Article 328 of the Criminal Code of the Russian Federation establishes legal liability only in relation to conscripts, that is, conscription military service, and part two of this article provides for liability for evading alternative civil service of persons released from conscription military service. Let me remind you that the application of criminal law by analogy is not allowed. The criminality of the act, as well as its punishability and other criminal legal consequences are determined only by the Criminal Code of the Russian Federation, it does not provide for evasion of conscription for mobilization as a crime.The legislator, in part 1 of Article 328 of the Criminal Code of the Russian Federation, clearly meant military conscription for citizens from 18 to 27 years old who are not in reserve, because only for this category of Russian citizens, Article 23 of the Federal Law "On Military Duty and Military Service" provides legal grounds for exemption from this service, in particular with regard to conscription for military service on mobilization, only a postponement is provided, and not release.

It is logical that for all cases of criminal prosecution under part 1 of Article 328 of the Criminal Code, the legal grounds for exemption from conscription for military service provided for in article 23 of the Federal Law "On Military Duty and Military Service" are applicable. It is also logical that they do not apply to conscription for military service on mobilization, as well as the very first part of article 328 of the Russian Criminal Code. In order to attract those who evade military service on mobilization under Part 1 of Article 328 of the Criminal Code of the Russian Federation, the legislator should have clarified the composition of the crime by Federal Law No. 365-FZ of September 24, 2022 “On amendments to the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation” and introduce differentiation of evasion from military service on conscription and evasion from military service on mobilization, but this was not done. I would like to note that the criminalization of society, taking into account the mass abandonment of the citizens of the Russian Federation of their Homeland and the evasion of mobilization by citizens living in our country, does not seem necessary. It is possible to tighten Article 21.5 of the Code of Administrative Offences of the Russian Federation in order to replenish the budget funds necessary for mobilization, respectively, by establishing a significant amount of administrative fine for evading conscription for mobilization and from concluding a corresponding contract on military service for mobilization. The most correct, in the case of establishing criminal liability from conscription for military service on mobilization, I believe to apply deprivation of citizenship for refusing to defend the Fatherland, as in the case of conscription during martial law, as well as conscription in wartime.

The legislator should adopt current norms regulating deferrals from conscription for mobilization, conscription during martial law, conscription during wartime, as well as provide for exemption from military duty for certain categories of citizens for these cases, excluding "rotten places" and "workarounds and loopholes" like postponements for specialists in the field of information technology and so on. Deferrals in the cases under consideration should be socially significant and economically justified, legally verified. In case of mobilization, wartime and martial law, it is necessary to adopt labor law norms that ensure compliance with social and labor guarantees of citizens, the preservation of jobs for them for the period of military service on mobilization, during martial law and wartime.