Case N 1-531/99

VERDICT

in the name of the Russian Federation

On November 25, 1999 the City Court of Obninsk, Kaluga region, including

President Makarovskii Ya.Ya.

with participation of Prosecutor Narusov M.A.

Counsel for the defence Kotlyar T.M. and Khramov N.E.

Secretary Savchenko N.L.,

having examined in full session the criminal case of

Neverovskii Dmitrii Anatol'evich, born on June 3, 1973 in Sverdlovsk, Jew, higher education, bachelor, liable to the military service; occupation: technical staff of the Obninsk Regional Right-Defence Group, resident in Obninsk, ul. O. Koshevogo, 19/1; since October 27, 1997 under a written undertaking not to leave the place

- accused of having committed a crime, provided by Art. 328. 1 of the Russian Criminal Code.

Having examined the proofs concerning the case, the Court

HAS ASCERTAINED:

that the accused Neverovskii is evading the military service without any lawful grounds to be exempted from it.

That the crime has been committed under the following circumstances.

The accused Neverovskii is liable for the military service and is registered at the State Military Commissariat of Obninsk.

Until May 1997 Neverovskii had the right to deferment of the call up because he was a student of the Obninsk Nuclear Energetics Institute. After the graduation from the Institute the grounds for the deferment from the call up were not valid any more.

On May 16, 1997 the Enlistment Commission of Obninsk decided to call him up for military service.

Neverovskii did not want to serve in the Army, therefore, he presented a complaint against the decision of the Enlistment Commission at Obninsk Regional Court.

According to the decision of the Court of January 11, 1999, his complaint was not satisfied and the decision to call him up for the military service was recognised legal and founded.

Neverovskii did not agree with the decision of the Court and appealed to a superior Court.

The decision of the Civil Case Court Collegium of the Regional Court of Kaluga of July 1, 1999 confirmed the decision of the Obninsk regional Court and did not satisfy the cassation appeal.

On October 5, 1999 Neverovskii has passed the call up military medical commission; he was recognised able to perform military service. The Enlistment Commission did not find out any grounds for the deferment of call up or for exemption of Neverovskii from the service in the Armed Forces.

However, Neverovskii referred to his convictions and refused to serve in the Russian Armed Forces - he has written it himself on his call up papers (proof 46 of the accusation).

The accused Neverovskii, interrogated during the trial, did not recognise his guilt and declared that he did not want to serve in the Armed Forces because of his convictions, founded on the fact that the Army continued the politics and the actions of the Army in Chechnya were criminal and that he could admit the violence only as a response and that if he found himself involved in an armed conflict, he would "break his oath and side with the Chechen armed groups"; that if he had to choose between military service and prison, he would better choose the prison, however, he would like to exercise his Constitutional right to the alternative civilian service.

However, the guilt of the accused of evading military service is confirmed by witnesses and materials of the case.

Witness Ledyakova Yu.V. gave evidence that she knew Neverovskii well and that he never wanted to go to the Army and declared that he did not want to loose his his and that the State did not really need the military service.

Witness Klevakichev I.A. gave evidence that in his presence Neverovskii had several times declared that he did not want to serve in the Army because of his convictions and considered the use of the Army as a failure of the democracy, declaring that the Army was useless and it was useless to serve in it. Neverovskii did not express any other conviction.

Witness Podgurskii A.P., Military Commissar of Obninsk, gave evidence that he knew that Neverovskii had refused to serve in the Army. However, in May 1997, when the deferment of Neverovskii was over, according to the Military Duty and Military Service law and the Presidential Enlistment Decree, the Enlistment Commission called him up for military service on May 16, 1997 - so far as there is no mechanism for performing the alternative civilian service.

Neverovskii appealed to the Court against the decision of the Enlistment Commission, but the Court instances refused to satisfy him complaint.

According to the Military Duty and Military Service federal law; Presidential Decree N 1323 of September 30, 1999; Order of the Military Commissar of Obninsk N 27 of April, 10 1999; since October 1, 1999 till December 12, 1999 in Obninsk the citizens of age from 18 till 27, registered by the Military Commissariat and having no right to deferment, were to be called for the military service.

On October 5, 1999 Neverovskii was called to present himself at the military medical commission in order to clarify if he was to be called up for military service.

On October 5, 1999 Neverovskii has passed the conscription military medical commission; he was recognised liable for the military service and he received his call up papers with the order to present himself on October 18, 1999 at the call up station.

However, Neverovskii refused to accept his call up papers and wrote on its back side that he refused to accept it in presence of all members of the Enlistment Commission and signed.

It was after this declaration of Neverovskii, - Podgurskii said, - that he was obliged to appeal to the Office of the Public Prosecutor asking to institute criminal proceedings concerning Neverovskii.

The guilt of the accused is also confirmed by:

The decision of the Regional Court of Obninsk of January 11, 1999; confirmed by the Decision of the Civil Case Court Collegium of the Regional Court of Kaluga of July 1, 1999; the complaint of Neverovskii was not satisfied (proofs 38-39, 40).

With the request of the State Military Commissariat of Obninsk (proofs 2-3), the Enlistment Order of the State Military Commissariat (proof 4), the decision of the medical commission that Neverovskii was able to perform the military service (proofs 6-11), the declaration of Neverovskii that he did not want to serve in the Army (proofs 21, 23, 31, 41); certificate that Neverovskii is a member of the ARA (Antimilitarist Radical Association) (proof 63).

The activity of this Association includes recommendations to the Russian citizens concerning the conscientious objection; this is confirmed by the Statute of this organisation and a special issue of the bulletin "Antimilitarist" (proofs 54, 55-58),

The call up papers from the State Military Commissariat, included in the materials of the case, confirm the fact that Neverovskii evades the military service (proofs. 45, 46).

Having examined the above mentioned proofs, the Court considers that the guilt of the accused Neverovskii of evading military service by evading the enlistment has been proved and it was correct to consider his actions liable to Art. 328.1 of the Criminal Code of the Russian Federation, because Neverovskii was informed about the decision of the Enlistment Commission to call him up for military service, he received his call up papers to present himself at the assembly point on October 18, 1999, but without any valid grounds he did not present himself at the assembly point.

The Court does not consider valid the references of Neverovskii to his convictions that - that is that he is not evading the enlistment, but just does not want to serve in the Army.

At the trail Neverovskii himself has declared that performing military service as such did not contradict his convictions.

According to Art. 59 of the Russian Constitution the refusal of Neverovskii to perform military service because of the opinion concerning the actual situation of the Russian Army cannot be considered as a valid reason to perform the alternative civilian service instead of the military service. References of Neverovskii to his convictions are not grounded; they only demonstrate that he does not want to serve in the Army and to loose him time for it.

This position of Neverovskii contradicts Art. 59.1 of the Russian Constitution that says that the defence of the motherland is a duty and a responsibility of a citizen of the Russian Federation.

Therefore, the Court has not found any convictions that could give to Neverovskii the right to perform the alternative civilian service instead of the military service. The Statement of the Constitutional Court of May 22, 1999 (to which Neverovskii refers), concerns the right of the citizens whose convictions do not admit the performance of the military service and who want to perform the alternative civilian service instead (proofs 52-53).

While deciding on the penalty the Court has taken into account the circumstances of the crime committed by the accused and his personality.

The Court takes into consideration that Neverovskii is being tried for the first time, his positive characteristics (proofs 68-70-72-74-77), at the same time Dmitrii Neverovskii refuses to execute the Supreme Law of our State - Art. 59.1 of the Russian Constitution - that says that the defence of the Motherland is a duty and a responsibility of the citizens of the Russian Federation.

Taken into consideration the above mentioned circumstances, the Court considers it necessary to inflict on Neverovskii only the punishment of imprisonment according to the sanctions of Art. 328 of the Russian Criminal Code.

In accordance with Art. 301-303 of the Criminal Process Code, the Court

HAS SENTENCED:

NEVEROVSKII DMITRII ANATOL'EVICH is guilty of having committed a crimes provided by Art. 328.1. of the Russian Criminal Code; according to the Law he is to be punished with 2 (two) years of imprisonment to be performed in at a reformatory prison of common regime.

The term of punishment of Neverovskii is to be counted since November 25, 1999.

The preventive measures - the written undertaking not to leave the place - is to be substituted by confinement.

Neverovskii Dmitrii Anatol'evich is to be confined at the Court room.

The proofs concerning this case - the personal file of Neverovskii - is to be delivered back to the Obninsk State Military Commissariat.

The verdict may be appealed against at Kaluga Regional Court in seven days after its reading; the convicted Neverovskii can do it within the same term - since the day he gets a copy of his verdict; he may present a complaint through the Court that has pronounced its judgement,

President Ya. Ya Makarovskii

"True copy"

PRESIDENT (signature) Ya. Ya Makarovskii