Protection of the rights of persons undergoing medical examination for the purpose of conscription in the Russian Federation

Rybka Oleg Sergeevich ORCID: 0009-0009-9609-7727 Graduate student, Department of Civil Law and Procedure, Far Eastern Federal University 690922, Russia, Primorsky Krai, Vladivostok, Russian Island, Ajax village, 10 oleg.sergei4.rybka@gmail.com Other publications by this author

Every year, in autumn and spring, thousands of young men come to a certain state institution and are examined by a group of doctors. Conscription as a phenomenon occurs steadily every year, but in 2022, citizens who were called up for partial mobilization were added to the regular conscripts. Given that people encounter military institutions every year to carry out conscription, this topic is important for consideration in the scientific environment.

This topic was directly and indirectly touched upon in their works by such scientists as: Lyutnitskaya O.V., Datsko A.V., Cherkashin V. S., Tokarev V. D., Andronenkov I. A., Efremov A.V. and Lapina O.A. The works of these authors indicate some problems during the medical examination of citizens in the framework of conscription, but miss some violations of the rights of citizens or do not focus on them.

The author of this work sees the purpose of his research in filling these gaps in the research of other authors, as well as in ensuring the protection of citizens' rights during the appeal by analyzing judicial practice and informing citizens about its result through the publication of this scientific work, as well as by proposing changes in legislation.

 The scientific novelty of the topic lies in the study of problematic aspects and the practice of applying legislation in the field of medical examination during conscription, such as violation of the rules of examination, as well as disregard for the rights of citizens and integrity of the procedure. This scientific study may provide new data and analysis of shortcomings in the medical examination procedure, which may be useful for subsequent amendments to legislation or the development of appropriate practical recommendations. Scientific research on this topic will also allow to determine what legal mechanisms can be used to protect the rights of citizens in case of violation of their rights, as well as to develop recommendations for improving legislation and its application in order to improve the situation in this area.

Based on paragraph 1 of Article 31 and Article 26 of the Federal Law "On Military Duty and Military Service" dated 28.03.1998 N 53-FZ, it is possible to distinguish such events during conscription for military service as:

· medical examination,

· professional psychological selection,

· meeting of the draft commission,

· being sent to a military unit for military service,

· being in the military commissariat before the start of military service.

One of the most important measures mentioned above is the medical examination of citizens called up for military service in the army. The passage of this event by citizens is regulated by the Federal Law "On Military Duty and Military Service" and the regulation on military medical examination approved by the Decree of the Government of the Russian Federation No. 565 dated 04.07.2013. Earlier, this procedure was also regulated by the Instruction on the Procedure for medical care of Citizens of the Russian Federation prior to their initial military registration, approved by Order of the Minister of Defense of the Russian Federation No. 240, Ministry of Health of the Russian Federation No. 168 dated 05/23/2001, but it ceased to be effective on 07/24/2022, although it is worth considering that compliance with the mandatory requirements contained in this instruction is assessed when state control (supervision), and their non-compliance may be grounds for bringing to administrative responsibility. This conclusion can be made on the basis of the Decree of the Government of the Russian Federation dated 31.12.2020 No. 2467.

It should be understood that the activities during the medical examination are carried out within a limited period of time (the terms of the draft campaign) and under conditions of high workload on specialist doctors, which causes the likelihood of errors in the work of specialist doctors participating in the medical examination and examination of conscripts. Errors and omissions during medical examination and the related unjustified conscription of citizens for military service cause significant economic damage to the state, form a negative attitude of young people and society as a whole to conscription of citizens for military service, and also pose a threat of harm to the life and health of citizens ^[1].

During the medical examination, there are a number of mandatory requirements. Even before the start of the medical examination, but not earlier than 30 calendar days, citizens must undergo a number of diagnostic tests that are mandatory when passing a medical examination in the future. The list of such studies includes:

· fluorography (radiography) of the lungs in 2 projections (if it was not carried out or if there is no information about this study in the medical documents within the last 6 months) with mandatory presentation of fluorograms (radiographs) or the results of a fluorographic (X-ray) examination on digital media;

· general (clinical) blood test;

· general urine analysis.

And also without time limit established by the regulations on military medical examination:

· electrocardiography at rest;

· blood testing for antibodies to human immunodeficiency virus, markers of hepatitis "B" and "C".

These norms are universally violated by military commissariats, as evidenced by judicial practice. Thus, in the Cassation Ruling of the Seventh Cassation Court of General Jurisdiction dated 19.10.2021 N 88a-16330/2021, the decision in the case in which a citizen who was assigned the "B-3" fitness category and in respect of whom a decision on conscription was made challenged the decision of the military commissariat as illegal is disputed. The court satisfied his demand, and this decision stood in the appellate and cassation instances. The reason for recognizing the decision of the commissariat as illegal was the decision on the category of fitness of a conscript without documents confirming the passage of mandatory diagnostic tests. The studies were carried out within the framework of the same call, but after the decision of the military medical commission. Similar violations of rights caused the cancellation of the decision of the military commissariat in other similar cases (Cassation determination of the Eighth Cassation Court of General Jurisdiction dated 09.07.2020 No. 88A-10658/2020) (Cassation determination of the Eighth Cassation Court of General Jurisdiction dated 09.07.2020 No. 88A-10323/2020). Also in the case under consideration, the court rejected the arguments of the commissariat that the failure to undergo such examinations, as well as others required for diagnosis, cancels the requirement of paragraph 14 of the regulation on military medical examination on the mandatory diagnostic tests for further medical examination.

This practice, being quite recent, clearly indicates the presence of violations on the part of military commissariats within the previously designated paragraph of the regulation. Also in the work of O.V. Lyutnitskaya, published in the collection of scientific articles of participants of the All-Russian meeting of young lawyers "Evolution of Jurisprudence", this author adheres to a similar position about the presence of such violations, while citing the practice for 2009 ^[2]. Which indicates that these violations have been committed by military commissariats for more than 10 years and this situation is not being corrected.

Also, within the framework of the violations described above, it is possible to point out ignoring the complaints of the conscript and indirect signs of illness. For example, if there are indirect signs of the disease (such as excess or severe deficiency of the BMI (body mass index) norm), then the commission's decision without inpatient or outpatient examination will be illegal (Appeal ruling of the St. Petersburg City Court of 16.02.2021 No. 33a-4278/2021 in case No. 2a-3621/2020). This problem was also pointed out by the scientist Efremov A.V. ^[3].

Another violation to which attention should be paid is the abuse by the medical commissions of the Military Commissariat of deferrals from conscription under subclause "a" of clause 1 of Article 24 of the Federal Law "On Military Duty and Military Service", which states "Deferral from conscription is granted to citizens recognized in accordance with the procedure established by this Federal Law temporarily not fit for military service for health reasons - for up to one year."

Judicial practice indicates violations of this kind. Thus, in the decision of the Nevsky District Court of St. Petersburg in case No. 2a-2444/2021, the court cancels the decision of the military commissariat to issue another postponement for health reasons, because during the case it was proved that the medical documents provided for the passage of diagnostic tests, as well as repeated studies and other medical documents are sufficient to establish a diagnosis. A similar conclusion is provided in the appeal ruling of the Chelyabinsk Regional Court dated 06.11.2014 in case No. 11-11801/2014.

In the course of the study, the author drew attention to the fact that the legislation regulating military duty and medical examination does not regulate in any way the number of postponements under paragraph 1 of Article 24 of the Federal Law "On Military Duty and Military Service", which may lead to the above-mentioned abuse. The fact that the issuance of several health deferrals in a row is the norm is also indicated by the positions of the courts (The Appellate determination of the Chelyabinsk Regional Court of 21.01.2019 in the case No. 11a-596/2019), especially when it is proved that it is impossible to determine the diagnosis from the available documents (The Appellate determination of the Chelyabinsk Regional Court of 22.12.2014 in the case No. 11-13433/2014).

If we talk about the purpose of paragraph "a" of paragraph 1 of Article 24 of the Federal Law "On military duty and military service", then we can say with confidence that this paragraph performs two important functions:

1) gives time for treatment and recovery after surgery,

2) gives time for a full/repeated examination if it is impossible to establish a diagnosis within the time of the draft commission.

But these delays can be delayed in various ways by doctors, subsequently this leads to a long non-issuance of a military ticket, in order to annually check the patient's health and make a decision on conscription at the first opportunity to improve the condition of the conscript. Such delays lead the conscript into a state of uncertainty, which exerts psychological pressure on him, thereby violating his rights by intentionally causing moral harm (although this concept is subjective and cannot apply to all situations). The solution to the situation is seen in a deeper regulation of the terms of medical examination, namely, an indication that a re-examination should be carried out on the basis of the patient's condition and medical documents that were received on the basis of the referral of specialist doctors when issuing referrals for additional medical examination or on the basis of a conclusion on the state of health of a citizen after treatment. It should also be fixed that a re-examination is possible only once after the expiration of the postponement period under subclause "a" of clause 1 of Article 24 of the Federal Law "On Military Duty and Military Service". If it is impossible to determine the category of suitability during the repeated examination for reasons beyond the control of the military medical commission, repeated examination is possible after the second postponement for health reasons.

But even after two delays, a state of uncertainty may arise in particularly difficult cases. In this case, it is necessary to fix the norm, which will indicate that if it is impossible to establish the category of validity at the last medical examination, a decision is made on an additional examination and the exact date of arrival of the conscript is appointed, but no later than the end of the next draft. If this date is outside the terms of conscription, then a military medical commission is convened on this date and the last medical examination is carried out.

If a conscript deliberately evades medical examination and (or) medical examination, then he will be recognized as an evader and will be liable in accordance with the Criminal Code of the Russian Federation.

It should be pointed out that the granting of a deferral under subclause "a" of clause 1 of Article 24 of the Federal Law "On Military Duty and military Service" is possible for no more than a year and no more than 3 times in a row under the same article of the schedule of diseases.

The above-mentioned innovations in the legislation regulating conscription, in particular medical examination, should discipline both the military medical commission and conscripts. This will lead to faster decision-making and a more efficient recruitment process.

Also, during the recruitment campaign, conscripts should pay attention to such a violation on the part of the medical commission as referral for additional examination in the absence of complaints from the conscript or medical and other documents that could indicate the presence of illness or would allow to doubt the health of the conscript. This case, of course, does not apply to situations in which health disorders may be suspected as part of an examination by a specialist doctor at a medical examination at the military enlistment office. So, in the appeal ruling of the St. Petersburg City Court of 26.11.2018 No. 33a-24489/2018 in case No. 2a-3097/2018, it is stated that a citizen appeals against the decision of the medical commission of the military commissariat to send for an additional examination, explaining such a direction by a personal conflict with a doctor. The court in this case sided with the conscript.

The violations of the conscript's rights described earlier, isolated from judicial practice, are only a small part of the violations that were eliminated through the exercise of the right to judicial protection. But the lack of awareness of conscripts about their rights leads to the latency of violations, which must be combated. As part of the solution to most problems, it is proposed to use various ways of informing both conscripts, in order to protect their rights, and doctors of the medical commission in order to conduct medical examinations more effectively, especially informing the latest conclusions of judicial practice, which indicates the resolution of legal differences in the regulation of medical examination by the military medical commission, as well as annual certifications and professional development for doctors, because lack of qualifications is undoubtedly one of the factors of violations ^[4].

Also, conscripts should take into account that there are several ways to protect their rights:

· challenging the decision on conscription in court;

· appeal of such a decision to a higher authority (the draft commission of the subject of the Russian Federation);

· first appeal the decision to a higher commission, and then to the court ^[5].

As indicated above, the decision of the draft commission of a municipal formation can be appealed by a citizen to the draft commission of the relevant subject of the Russian Federation, but it is worth paying attention to the term, namely, this appeal is administratively possible within three months from the date of the decision being appealed, while the implementation of this decision is suspended until the decision is made by the draft commission of the subject The Russian Federation or the entry into force of a court decision, if a citizen has used the right to judicial protection ^[6]. The same period is set for judicial protection (paragraph 1 of Article 219 of the Federal Law of 08.03.2015 No. 21-FZ of the Code of Administrative Procedure of the Russian Federation). At the same time, abuse of the right to judicial protection is unacceptable. This is indicated in one of their works by such scientists as Gorshunov D.N., Miftakhov R.L., Safina M.M.: "Based on the fact that the draft campaign itself is urgent and at its end the disputed decisions, actions (inaction) may lose relevance, be canceled in the prescribed manner. Since a systematic judicial appeal of actions and decisions may contain signs of abuse of rights in order to avoid conscription, the court should take the maximum possible measures to consider such cases in the relevant period of time" ^[7].

It is worth considering that in cases where the district draft commission has decided to grant a deferral or exemption from conscription for health reasons, the correctness of their provision is checked by the draft commission of the subject of the Russian Federation, which in such cases makes appealing the decision through the commission impractical.

Usually, citizens' claims concerning medical examination in the framework of the draft are reduced to two requirements:

· cancel the decision of the draft commission;

· oblige the military medical commission to make a decision on a certain category of fitness.

It is worth noting that in order to substantiate the requirement to determine the category of validity, a judicial military medical examination is carried out, since this requires special knowledge. If a conscript evades such an examination, his behavior will be regarded as evasion from proving the facts to which he refers (decision of the Frunzensky District Court of St. Petersburg dated 27.07.2018 No. 2a-1166/2018). At the same time, it is worth considering that in the absence of questions: "Is the category of validity established correctly?" or "Is the diagnosis of the conscript correct?", a satisfactory court decision will not be regarded as a substitution of the competence of the medical commission (Cassation ruling of the Eighth Cassation Court of General Jurisdiction dated 09.07.2020 N 88A-10323/2020).

It should also be borne in mind that the judicial military medical commission checks the condition of the conscript at the time of making a decision on the category of fitness. This conclusion can be made based on the issues for forensic examination specified in judicial practice. (Appeal ruling of the St. Petersburg City Court of 08.10.2018 No. 33a-19537/2018 in case No. 2a-991/2018)

Summing up the results of this study, it is possible to draw conclusions about the imperfection of the medical examination process by government agencies. The study revealed such violations of the rights of conscripts as:

1.                 Making a decision on the category of fitness in the absence of mandatory diagnostic tests and ignoring complaints and medical documents of the conscript,

2. Abuse of the application of deferral from conscription for health reasons,

3. referral for additional examination in the absence of complaints of the conscript or medical and other documents that could indicate the presence of illness or would allow to doubt the health of the conscript.

As a result of studying these problems , the following solutions were proposed:

1.                 It is necessary to raise awareness of conscripts about their rights, including information about ways to protect their rights, during medical examination as part of conscription, by placing brochures, posters, etc. on the territory of the military commissariat, in the building of which conscripts undergo medical examination, as well as posting on the Internet.

2.                 It is required to periodically inform medical specialists about changes in the legal environment concerning medical examination during conscription, including the results of recent judicial practice, as well as to conduct advanced training aimed at more accurate diagnosis in accordance with the schedule of diseases contained in the regulations on military medical examination.

3.                 It is necessary to make changes to the current legislation, namely:

· limit the number of times a postponement for illness is granted within one article of the schedule of illness to three;

· directly indicate administrative and criminal liability for evading additional medical examination.

The State should accept the fact that the process of conscription, in particular during medical examination, has its drawbacks, which should be eliminated for better conscription. It is also worth agreeing with Lyutitskaya O.V. that "the performance by the state of the function of protecting the sovereignty and defense capability of the country should not entail violations and diminution of the universally recognized and established rights of citizens subject to conscription." ^[2].