Concept and legal basis of draft evasion
Definition
Draft evasion refers to the deliberate and unauthorized avoidance of a legally regulated military conscription through various actions or omissions. In Germany, draft evasion is governed by the Criminal Code (StGB) and constitutes a punishable offense intended to circumvent the state’s requirements for compulsory military service. The term encompasses a range of behaviors, such as evading military service by failing to appear, acts of deception, fleeing abroad, or causing incapacity for service.
Legal basis
The central legal provision is Section 16 of the Military Penal Code (WStG), which stipulates “evasion of military service.” Additionally, related provisions from the StGB, such as refusal to obey orders or desertion, may apply in certain circumstances. Until 2011, compulsory military service was in force in Germany, but its suspension has not led to the complete abolition of military criminal provisions. In times of crisis or tension, these regulations can be reactivated.
Elements of the offense of draft evasion
Subjective element
A prerequisite for punishability due to draft evasion is always intentional conduct. This means the individual must knowingly and willingly intend to avoid performing military service in whole or in part.
Objective element
The objective element covers various behaviors, in particular:
- Failure to appear for the scheduled commencement of service despite having been duly and timely called up
- Unauthorized absence from service without a justifying or excusing reason
- Acts of deception, such as feigning illness, presenting forged medical certificates, or providing false personal information
- Causing incapacity for service, e.g., by self-mutilation, self-injury, or serious endangerment of health with the aim of becoming unfit for service
- Flight abroad or going into hiding
Attempt is also punishable.
Distinction from related criminal offenses
In contrast to draft evasion, desertion (§ 15 WStG) involves unauthorized departure from the place of duty during ongoing military service. Draft evasion, on the other hand, already aims to avoid the commencement of service or a permanent exemption from compulsory military service.
Legal consequences of draft evasion
Threat of punishment and sentencing range
Section 16 (1) WStG provides for a custodial sentence for draft evasion, the specific duration of which depends on the individual case and the type of draft evasion. In less serious cases or in the case of attempts, the penalty range is accordingly reduced.
Examples of offenses:
- Evasion of military service (§ 16 WStG): imprisonment of up to five years
- Self-mutilation or feigning incapacity for service (§ 17 WStG): imprisonment of up to five years
Legal grounds for mitigation
The law provides for mitigating circumstances if the draft evasion is committed out of specific motives, such as fear of serious harm to life, health, or liberty. In such cases, the court may impose a lesser sentence.
Exclusion of criminal liability
Draft evasion is not punishable if there is a recognized ground for refusal, such as the decision to be a conscientious objector (§ 25 Military Service Act – WPflG). In such cases, there is the option to perform a civilian alternative service.
Draft evasion in an international comparison
European framework
Many European legal systems contain similar regulations and sanctions to prevent and prosecute draft evasion. The specific design, however, differs in terms of sentencing ranges and the options for conscientious objection.
Conscientious objection vs. draft evasion
The clear distinction between legitimate conscientious objection and punishable draft evasion is internationally recognized. While draft evasion can be prosecuted, conscientious objection is considered a protected human right in numerous countries and does not result in criminal liability.
Procedures and statute of limitations
Investigation and criminal proceedings
Offenses related to draft evasion are generally prosecuted by the competent military law enforcement authorities. Special procedural rules and courts (military disciplinary courts, military criminal procedures) apply. Since the suspension of compulsory service, prosecution is currently de facto suspended but remains applicable in the event of a defense or emergency situation.
Limitation periods
The limitation period for draft evasion is, depending on the severity of the offense, five years. It begins with the termination of the obligation to serve but can be suspended in cases of going into hiding, staying abroad, or fleeing.
Historical development and current significance
Development in Germany
The legal provisions on draft evasion date back to the era of the Reichswehr and were further developed during World War II and in the Basic Law. The possibility of intentional draft evasion played a socially significant role, especially during politically controversial deployments.
Current situation
Since the suspension of compulsory military service on July 1, 2011, the relevance of draft evasion in German law has declined significantly. However, the regulations remain fully valid in the event that conscription is reactivated.
Sources and further reading
- Military Penal Code (WStG), especially §§ 15-17
- Military Service Act (WPflG)
- Criminal Code (StGB), relevant provisions
- Federal Office for Bundeswehr Personnel Management (Ed.): Provisions relating to military law
- Federal Ministry of Justice: Legal texts on military criminal law
Note: This article provides a comprehensive description of the term “draft evasion” and the associated legal regulations and is suitable for use in legal reference works.
Frequently asked questions
What legal consequences can result from draft evasion?
Anyone who evades military service in Germany is liable to prosecution under the Criminal Code (§ 16 Military Penal Code – WStG). Sanctions range from imprisonment of up to five years or a monetary fine, with the specific sentencing range depending on the individual case. Prosecution may also take place in a military court if the person is already a member of the German Armed Forces. Additionally, in addition to the criminal law aspect, disciplinary proceedings may be initiated, which may result in further official consequences, such as dismissal from the service relationship. In the event of a conviction, an entry is made in the Central Criminal Register, which can have far-reaching consequences for future employment and social rehabilitation. If the evasion is carried out by fleeing abroad, international requests for extradition may also be initiated, provided a corresponding agreement exists with the state concerned.
What legal options are available for refusing military service?
The Basic Law of the Federal Republic of Germany guarantees in Article 4(3) GG the right to conscientious objection to military service. Anyone who wishes to refuse service with a weapon must apply in writing and provide reasons. Upon a positive review, the person will not be conscripted for military service, but instead may be called upon for alternative service (formerly: civilian service). The objection must, however, be lodged in good time and be well-founded; inadmissible or unsubstantiated objections are treated as draft evasion and prosecuted accordingly. It is also possible to apply for suspension or exemption for religious, medical, or other serious personal reasons, with the prospects of success to be assessed legally in each individual case.
How does draft evasion differ legally from desertion or refusal to obey orders?
Draft evasion refers to the deliberate avoidance of the commencement of military service, for example by failing to appear for a medical examination or induction. Desertion is the unauthorized absence from duty after military service has already commenced and is usually punished even more severely under §§ 15 ff. WStG. Refusal to obey orders (§ 20 WStG), on the other hand, occurs when a soldier does not comply with a lawful order from a superior. All three offenses are defined separately in the Military Penal Code and differ in terms of the offense, requirements, and sentencing range. Thus, draft evasion is an independent offense and cannot be automatically equated with other forms of insubordination against military discipline.
What limitation periods apply to draft evasion?
The limitation period for prosecution of draft evasion is governed by the general rules of the Criminal Code (§ 78 StGB) in conjunction with the Military Penal Code. Typically, the limitation period is five years from the commission of the offense, provided there are no aggravating circumstances such as serious service violations or repeat offenses. If the evasion begins at a later stage (e.g., through flight during service), the start of the limitation period may be correspondingly postponed. Certain grounds for suspension exist, such as ongoing investigations, which can delay the running of the period.
Can ongoing or concluded proceedings for draft evasion be enforced abroad?
In principle, a conviction for draft evasion in Germany can lead to extradition requests if the individual seeking to evade conscription flees to a country with which an extradition agreement exists. However, many European countries have protection mechanisms for asylum seekers based on conscience, particularly within the EU. If there is a final conviction, extradition can be requested under the conditions of international legal relationships (e.g., European Arrest Warrant or bilateral agreements for the enforcement of criminal judgments). In states with no extradition agreement, enforcement is not legally possible.
What role does administrative procedure play in cases of suspected draft evasion?
In addition to criminal proceedings, administrative procedures are usually also involved in cases of suspected draft evasion. These may include the denial of pension entitlements, the withdrawal of benefits, or the annulment of appointments and call-ups. Administrative authorities regularly review whether draft evasion has actually taken place and whether there are special reasons that might, for example, result in disciplinary proceedings. In some cases, an administrative report is made to other authorities, such as the residents’ registration office or the Central Criminal Register, which can also result in administrative disadvantages.
Is there a prospect of rehabilitation after a conviction for draft evasion?
After serving any sentence of imprisonment or fine, it is possible to apply for rehabilitation. Various periods and evidence must be observed here, such as law-abiding conduct after conviction and the fulfillment of certain restitution programs. The entry in the Central Criminal Register can be deleted after certain retention periods have expired, thereby lifting legal disadvantages, for example in professional life or upon re-entry into public life. However, the opportunities for rehabilitation strongly depend on the individual case and the relevant federal or state context.
