According to the Constitution of the Russian Federation, freedoms and human rights are the highest value and recognition of human dignity is the basis for all his freedoms and rights. Respect for human rights and freedoms is the most important condition for the existence of a state and its stability. Human dignity is protected by the state and the constitution, and nothing can be the basis for its derogation.
These procedures and constitutional provisions also apply to military personnel. In addition, in accordance with the current status of a military personnel, his dignity and honor are under special protection.
Commentary to Art. 336 Criminal Code
1. The objective side of the crime consists of insult, i.e. in humiliation of the honor and dignity of one serviceman of another, expressed in indecent form. Insult can be verbal (verbal, using obscene expressions), written (verbal, graphic, via electronic means of communication) or implied (indecent gestures, signs, slapping, etc.).
If the insult was committed by one serviceman against another not during the performance or not in connection with the performance of the duties of military service by the victim, criminal liability is excluded.
2. The subject of a crime under Part 1 of Art. 336 of the Criminal Code is a serviceman who is not in a relationship of subordination with the victim. According to Part 2 of Art. 336 of the Criminal Code, on the contrary, the subject will be either a serviceman subordinate to the insulted superior, or a superior insulting a subordinate serviceman.
Dismissal for immoral act
First of all, let’s clearly define what kind of offense can be considered immoral and whether any employee of an educational organization can be fired on this basis.
The Labor Code does not define an immoral offense; the employer independently determines whether a particular offense is such, based on his own concepts of morality. However, in any case, the following will be considered immoral:
- drinking alcoholic beverages;
- fights;
- insults and obscene language;
- lewd or other actions that negatively affect others.
For example, the Municipal Educational Institution of Secondary School dismissed two teachers under clause 8 of Part 1 of Art. 81 of the Labor Code of the Russian Federation for a conflict based on hostility towards each other. Believing that the conflict was not an immoral offense, one of the teachers went to court demanding reinstatement. However, the court, when considering the case, found that during the conflict, teachers repeatedly committed verbal insults during breaks, which at times escalated into brawls. All this happened in front of the students, therefore, immoral acts were committed. Therefore, the demands were refused ( Appeal ruling of the Moscow Regional Court dated 04/03/2012 in case No. 33-6057/2012 ).
Let us note that forcing students to lie can also be regarded as an immoral offense and in such a situation, the dismissal of an employee of an educational organization performing educational functions will be legal ( Appeal ruling of the Moscow City Court dated June 20, 2014 in case No. 33-22169 ).
Thus, any violation of moral principles and socially accepted norms of behavior can be considered an immoral offense.
But in addition to determining the immorality of the act committed, the employer should clearly understand that not every employee can be fired for it. Thus, the Plenum of the Armed Forces of the Russian Federation in Resolution No. 2 of March 17, 2004 “On the application by the courts of the Russian Federation of the Labor Code of the Russian Federation” [1] indicated that only those workers who are engaged in educational activities, for example teachers, educational teachers, can be fired for committing an immoral act. institutions, vocational training masters, teachers of children's institutions, and regardless of where the immoral offense was committed - at the place of work or at home ( paragraph 46 ).
Of course, the educational function, in addition to teachers and teachers, is also carried out by coaches of sports sections, heads of creative circles, sections and studios, as well as employees who are engaged in educational work in addition to their official duties, for example, deputies for educational work. Thus, the Altai Regional Court refused to reinstate the director of the MCOU secondary school. The director believed that he did not belong to employees performing educational functions, since he exercised leadership and did not teach lessons. However, the court indicated that the fact that the plaintiff does not teach lessons, that is, is not a direct participant in the educational process, does not indicate his failure to perform educational functions. The school director has direct contact with students, applies educational measures, therefore, he performs educational functions ( Appeal ruling of the Altai Regional Court dated August 27, 2014 in case No. 33-6014/14 ).
So, who can be fired for committing an immoral act and what is considered such, we figured it out. Now about how to carry out the dismissal itself. Remember that dismissal under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation will be legal if three circumstances occur simultaneously:
- performance of educational functions by the employee;
- committing an immoral offense;
- incompatibility of the committed offense with the continuation of work related to the performance of educational functions.
Please note:
If an immoral act is committed at the place of work and in connection with the performance of job duties, then such an employee may be dismissed subject to the procedure for applying disciplinary sanctions established by Art. 192 , 193 Labor Code of the Russian Federation . If an immoral offense is committed outside the place of work or at the place of work, but not in connection with the performance of work duties, the employment contract under clause 8 of part 1 of art. 81 of the Labor Code of the Russian Federation can also be terminated, but no later than a year from the date of discovery of the offense ( clause 47 of Resolution No. 2 ).
The procedure for terminating an employment contract under clause 8, part 1, art. 81 of the Labor Code of the Russian Federation is as follows:
- The fact of committing an immoral act is recorded - a report or act is drawn up in the presence of witnesses. These documents need to describe in as much detail as possible the circumstances under which the offense was committed and the employee’s actions themselves.
- We demand an explanatory statement from the violator of moral rules, preferably in writing. Remember that the employee has two working days to explain. If after this time no explanations are received, a corresponding act is drawn up.
- We are creating a commission to investigate the fact of committing an immoral act. It is this commission that will fully indicate in the act all the circumstances, explanations, testimony of witnesses and come to a conclusion whether the employee committed an offense or not.
- We make a decision to take disciplinary action against the employee. Let us remind you that if the offense is minor, and the employee is valuable, it is not necessary to fire him - you can limit yourself, for example, to a reprimand.
- We issue an order: if a decision is made to dismiss an employee - in form T-8[2]. Remember that an order can be issued if no more than one month has passed since the discovery of the offense ( Part 3 of Article 193 of the Labor Code of the Russian Federation ). The specified period does not include the time the employee is ill, on vacation, or absent for other legal reasons (see example on page).
- We formalize the dismissal - entries are made in the personal card, work book, all amounts are paid to the employee, copies of documents are issued.
Second commentary to Art. 336 of the Criminal Code of the Russian Federation
1. Insult should be defined as humiliation of the honor and dignity of another person, expressed in an indecent form.
2. Crime under Art. 336, violates the order of military relations established in the regulations, humiliates the honor and military dignity of a serviceman. Regardless of the place and time of commission, a military crime is an insult inflicted by one serviceman on another in connection with the performance of military service duties by the victim or during the performance of these duties by the victim or perpetrator.
3. Under the humiliation of honor and dignity in Art. 336 should be understood as a negative assessment of the victim’s personality as a soldier and a citizen, humiliation of his reputation in the eyes of others, discrediting his human dignity and military rank.
4. An indecent form of insult consists of humiliation of honor and dignity in cynical expressions or actions that contradict generally accepted moral norms, elementary requirements of morality and ethics.
5. From the subjective side, the crime is committed intentionally.
6. According to Part 1 of Art. 336, an insult by one military serviceman to another, when they are not in a relationship of subordination, is subject to qualification, i.e. equal to an equal, senior by military rank of a junior, or junior by military rank of a senior.
7. Part 2 provides for an insult by a subordinate to a superior or a superior to a subordinate. Thus, the criminal law equally protects the honor and dignity of both the superior from the encroachment of a subordinate, and the subordinate from the encroachment of the superior, which corresponds to the requirements of military regulations.
What kind of insult would it take to insult a serviceman by a senior in rank?
For negative statements by a superior to a subordinate, as well as for the use of insulting words towards a superior, the perpetrator is subject to liability in accordance with paragraph 2 of Article 336 of the Criminal Code of the Russian Federation.
The sanction of the article provides for the following punishment:
- restriction on military service for a period of up to 12 months;
- keeping the guilty person in a disciplinary military unit for up to 12 months.
Restrictions in military service mean deductions in the form of monetary allowances to the state income. The amount of withholding is determined in court, but it should not exceed 20%.
Also, during the imposition of this type of punishment, a serviceman cannot be promoted to position or military rank. And the time of punishment is not taken into account when calculating the length of service.
Keeping a serviceman who has insulted a senior officer or a subordinate in a disciplinary military unit means serving the sentence in separate battalions and disciplinary companies.
A serviceman who has insulted his superior or subordinate may be sent to one of two disciplinary units that exist in Russia:
- 28th battalion in the village. Mulino, Nizhny Novgorod region;
- 36th battalion in the village. Kashtak, Transbaikal region.
While serving a sentence in a disciplinary military unit, a convicted serviceman, regardless of his previous rank, is in the position of a soldier.
Such convicts are allowed short-term visits (2 times a month lasting up to 4 hours) and long-term visits (with the permission of the commander, 4 times throughout the year).
While serving their sentences, convicts are involved in paid work. 50% of the salary received by the convicted person is transferred to the account of the disciplinary military unit.
If offensive expressions were directed at a serviceman outside the scope of his official activities, then responsibility for insults falls under Article 5.61 of the Code of Administrative Offenses of the Russian Federation.
Criminal liability for insulting a serviceman: why such a severe punishment?
Insulting a person in military service is punished quite severely, because such an act provides for criminal liability.
Such an act affects not only the honor and dignity of the soldier’s personality, but also undermines the authority of state power, because the military man is a representative of the government.
Insulting an officer of a subordinate who is not a military personnel does not fall under criminal liability, since no military crime was recorded due to the absence of a special object (the person is not a military personnel).
Also, an insult by a serviceman to a military organization, that is, a legal entity, is not subject to criminal liability, since a military organization does not have any self-esteem.
Insult should be understood as verbal humiliation, ridicule, written humiliation, as well as various physical actions that humiliate the honor and dignity of a military man - a slap in the face, spitting, tearing off uniform shoulder straps, insignia, etc.
Third commentary to Article 336 of the Criminal Code of the Russian Federation
1. Military regulations contain clear requirements for respect for the personality of military personnel, compliance with the rules of military courtesy, and the inadmissibility of humiliation of their honor and personal dignity.
2. The article under comment provides for liability for two types of crime: 1) insult by one serviceman to another; 2) insult by a subordinate to a superior, as well as by a superior to a subordinate. In both cases, the crime is committed during or in connection with the performance of military service duties.
3. Insult as a crime against military service differs from ordinary crimes in that it violates the order of military relations established in the regulations. It can be committed both at the location of a military unit and outside it, both during official time and while on leave, leave, business trip, etc. However, regardless of the place and time of commission under Art. 336 should qualify an insult inflicted in connection with the performance of military service duties by the perpetrator or victim. Therefore, an insult inflicted on the basis of personal relationships between military personnel (for example, out of jealousy, envy, personal hostility, etc.) cannot be recognized as a crime against military service.
4. The subjective side of the crime is characterized by direct intent.
In this case, the guilty person realizes that he is humiliating the honor and dignity of another serviceman, superior or subordinate, and desires this. ‹ Article 335. Violation of the statutory rules of relations between military personnel in the absence of subordination relations between them Up Article 337. Unauthorized abandonment of a unit or place of service ›
