A list of possible actions in the current conditions and an analysis of official comments on mobilization in relation to IT specialists,” the Versus.legal law company shared.
The text was prepared by Alexey Vikharev, a lawyer at Versus.legal.
From the date of entry into force of the Decree of the President of the Russian Federation dated 09/21/2022 No. 647 “On the announcement of partial mobilization in the Russian Federation“, various state bodies issue official explanations on the procedure and rules for partial mobilization.
Among other things, on September 23, the Department of Information and Mass Communications of the Ministry of Defense of the Russian Federation published on the official website a directive on the decision taken by the Ministry of Defense not to enlist in military service as part of partial mobilization of citizens. In particular, we are talking about employees of accredited IT organizations.
What is the decision of the Ministry of Defense
In the dry balance from the post of the Ministry of Defense , the following criteria can be distinguished for the postponement of some citizens:
- employed in an accredited IT organization;
- involved in the “development, development, implementation, maintenance and operation of solutions in the field of IT and ensuring the functioning of the information infrastructure“;
- they have a higher education in the relevant specialty.
No more specific criteria were provided. The Ministry of Finance has published clarifications where it clarifies that these may be employees who are involved in the development, development, implementation, maintenance and operation of software (software) and hardware and software complexes (PAK), however, it remains unclear whether the decision of the Ministry of Defense applies to any software or there will be new clarifications later.
There are also no explanations about the employee’s employment criteria. The Ministry of Finance only mentions that we are talking about full-time employees. It is difficult to say without further explanation whether the same rules apply on the basis of which a deferral from military service was granted or not (for example, work under an employment contract for at least 11 months before the time of conscription).
How to get such a postponement
The Ministry of Defense in the directive informs that the lists of citizens submitted in the prescribed form to the General Staff of the Armed Forces of the Russian Federation will be considered the basis for postponement. At the moment, there is no such form and procedure for providing it. The Ministry of Finance reported that the agency clarifies this procedure. It is necessary to monitor the publications of ministries in anticipation of new comments on the procedure for obtaining a postponement.
What is possible to do before
The Ministry of Finance also provided recommendations for employees of IT companies who have already received a summons (or will receive it before the company submits the lists). In particular, it is necessary to take with you to the military enlistment office:
- original/copy of the employment contract certified by the head;
- diploma of higher education;
- extract from the Register of accredited IT companies, certified by the CEO/his authorized person;
- a certificate from the place of work signed by the CEO / authorized person that the employee is involved in the development, development, implementation of IT solutions.
In our opinion, such a set of documents (certified copies) should be carried by every employee of an IT company in order to avoid possible misunderstandings. In the absence of explanations, the certificate can be filled out in a free form, which will reflect exactly how the employee is involved (for example, develops certain software or supports it in operation).
If an employee meets the criteria, but was rejected
The Ministry of Finance continues to promptly assist in the current situation. In particular, new explanations of the department have appeared. If an employee of an IT company falls under the criteria from the decision of the Ministry of Defense (employment, education, “involved in IT solutions“), but was refused exemption from conscription, it is necessary:
- prepare a list of documents specified in the previous paragraph;
- sign a package of documents with an enhanced qualified electronic signature of the general director;
- send a package of documents to the address help@digital.gov.ru .
The Ministry of Finance will independently process the documents and send them to the Ministry of Defense. How further communication will be built is still unclear, perhaps the Ministry of Finance will continue to correspond through the specified email address.
What is additionally worth considering
- The basic right to delay is granted on the basis of Article 18 of Federal Law No. 31-FZ “On mobilization training and mobilization in the Russian Federation (temporarily unfit, dependent on 4 children, see the list here) + on the basis of Decrees of the President of the Russian Federation;
- The decree on partial mobilization clarified that employees of the military-industrial complex also have the right to delay, and also that the categories of citizens for postponement are determined by a Decree of the Government of the Russian Federation (at the time of the comment, such a document has not been published, the Government website states that the categories will be determined in the “near future”);
- The decree on partial mobilization in the adopted version applies to citizens staying in reserve, without clarifications and restrictions.
What is the result
The adopted decision of the Ministry of Defense, although it specifies the Decree of the President of the Russian Federation on partial mobilization, does not contain details about the criteria of employees or the procedure for exemption from conscription from mobilization.
At the moment it is possible:
- determine the list of all employees of an accredited IT company;
- check that each of them is involved in some way in the development, maintenance, operation of the software;
- check the availability of relevant higher education (without other explanations, it is difficult to say that you can use
- list of specialties from the Decree of the Government of the Russian Federation on the postponement of conscription);
- prepare and certify copies of the employment contract, extracts from the Register of IT companies, as well as a diploma of higher education and a certificate that the employee is “involved”;
- monitor further official explanations and acts of departments and ministries.
Additionally, we draw attention to the fact that at the moment the Ministry of Defense only indicates that a decision was made on “non-enlistment for military service as part of partial mobilization” and that such lists of employees will be “grounds for exemption from enlistment of citizens.”
Therefore, in this case, legally, in order to recognize such an exemption as a deferral from conscription, a presidential decree or other regulatory legal act is required, which will fix it more formally. In this regard, in some cases, the staff of the military enlistment office may potentially neglect such an explanation and consider that an official regulatory act on this is required.