For Russian servicemen, surrender (Article 352.1 of the Criminal Code) on a voluntary basis is now considered a crime, the punishment is imprisonment for a term of three to ten years. At the same time, the Supreme Court of the Russian Federation clarified that it would be the deliberate surrender of captivity that would be considered a crime if it was possible to avoid this and provide “resolute resistance” to the enemy. There will be no corpus delicti, only if the soldier is not able to evade captivity, for example, he is seriously wounded or shell-shocked. Lawyer Dmitry Zakhvatov explained in a conversation with The Insider that the Russian Supreme Court has long lost the ability and desire to "provide resolute resistance" to illegal and repressive laws stamped by the State Duma in the "crazy printer" mode.
“All mobilized and military people have the full right to refuse to participate in the war with Ukraine in any way, including through voluntary surrender, but now the implementation of this right will most likely entail illegal criminal prosecution.
Since the war against Ukraine is an illegal act of armed aggression and is recognized as such by the UN General Assembly Resolution “Aggression against Ukraine”, then all the actions of the Russian authorities related to the mobilization and dispatch of military personnel to the front are not based on the law. As for the wording according to which, from the point of view of Putin's non-legal law, it is considered “criminal” “failure to show resolute resistance” before surrender, three things should be noted here.
1) Like all Putin’s repressive laws, the amendments to the Criminal Code under Article 352.1 of the Criminal Code of the Russian Federation and the draft new Decree of the Plenum of the RF Armed Forces, which are supposed to clarify “failure to offer resolute resistance” before surrender, do not meet the quality requirement of the law — that is, its clarity and unambiguity arising from the constitutional principle of equality and justice.
2) Deliberate non-compliance by the legislator with the requirement of the quality of the law has a specific repressive goal, which is to intimidate army personnel in order to force them to refuse to surrender: “Die, otherwise you will sit down.”
3) On the one hand, the main motivating factor in recruiting prisoners for the war with Ukraine is the artificial creation of unbearable and degrading conditions of detention in correctional institutions. On the other hand, taking into account such clarifications of the draft Plenum of the RF Armed Forces, a criminal case under Article 352.1 of the Criminal Code of the Russian Federation can be initiated against any serviceman who has been in captivity. Thus, after the exchange, former prisoners can be forced to go to war again under the threat of prison.
Something similar was done earlier by Putin's ideological predecessor, Joseph Stalin. In accordance with the decree of the headquarters of the Red Army 270 of August 16, 1941 "On the responsibility of military personnel for surrendering and leaving weapons to the enemy" signed by him. This document served as a prologue to the repressions against Soviet prisoners of war, up to a third of whom, after being released from captivity, ended up in the Gulag or were sent to certain death in penal battalions.
As lawyer Pavel Chikov noted in his Telegram channel, the Supreme Court is generally correcting its practice in cases of war crimes. Among other things, now any capture will be attributed to voluntary surrender , if the soldier did not "provide strong resistance." According to Chikov, this interpretation implies that any captured serviceman will at least undergo a procedural check in accordance with Articles 144-145 of the Code of Criminal Procedure of the Russian Federation.
On March 13, the FSB announced the detention of Russians three times in the morning: one of them was going to go to fight on the side of Ukraine, the second tried to persuade those mobilized to cooperate with Ukraine and surrender. Also on that day, an activist from Khabarovsk was detained, who allegedly donated to the Ukrainian Armed Forces.
