Criminal liability for desertion under the Criminal Code of the Russian Federation, Article 338

ST 338 of the Criminal Code of the Russian Federation.

1. Desertion, that is, unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for service for the same purposes, is punishable by imprisonment for a term of up to seven years.

2. Desertion with weapons entrusted to the service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group, is punishable by imprisonment for a term of up to ten years. Note. A serviceman who has committed desertion for the first time, as provided for in the first part of this article, may be released from criminal liability if the desertion was the result of a combination of difficult circumstances.

Lawyer's comments

In order for a lawyer to help in court, you need to tell him:

1. For what reasons was the crime committed?
2. Were there any circumstances due to which the citizen left the service?
3. How difficult were these circumstances?
4. Were there any quarrels or other conflicts in the military unit?

You cannot withhold information from your lawyer that will help you draw up a defense plan and avoid sanctions. The defense will be carried out based on the client's testimony

Therefore, it is very important to provide the defender with truthful information without fear of consequences.

If reporting information entails the threat of physical harm from colleagues or senior ranks, the lawyer will direct forces to ensure that the state provides protection.

What does judicial practice show under Art. 338

According to statistics, desertion is not a common crime. Still, from time to time, soldiers desert from their units, including with weapons in their hands.

Thus, examples of a crime under Art. 338, you can cite:

1. Private I. could not stand the harsh conditions of service in his opinion and deserted from the unit. The command immediately reported the incident, and he was put on the wanted list. The investigator of the military prosecutor's office leading the case suggested that Private I. would try to get into his hometown. And so it happened, the police arrested I. on the way to the house. Private I. was sentenced to prison for 4 years and 5 months.
2. Sergeants M. and S. voluntarily left the guard and the territory of the unit, taking with them 2 Kalashnikov assault rifles and 2 full horns of cartridges for them. 4 days later they were detained by the police while trying to rob a store. For desertion with weapons, the court sentenced them to prison for 7 and 8 years, respectively. They were also punished for attempted armed robbery.
3. Private Ch. left the unit without permission after being there for 1 week. Almost immediately he was detained by patrol. As the investigation established, the reason for the escape was bullying from senior employees. Based on the fact that the crime was committed for the first time and under difficult circumstances, Private Ch. was exempted from the possibility of imposing punishment.

All crimes committed by active military personnel while on duty, including desertion, are investigated by the military prosecutor's office. The consideration of such criminal cases is carried out by the Military Court, which until 1992 was called the tribunal.

What decisions are most often made under Article 338?

According to statistics, military crimes in Russia are not common. Every year, Military Courts consider 1,500-2,000 such criminal cases. It is difficult to say whether military personnel are really so disciplined, but most likely not.

The minimum number of criminal cases is due to several factors:

• The need for clear statistics. If a serviceman deserted, but ultimately changed his mind and decided to surrender, then with a high degree of probability there will be a circumstance for him that allows him to exclude the assignment of criminal liability.
• Punishment of the entire command: from the platoon commander to the unit commander. Few people want to be responsible for their subordinates and harm their career, so desertion is reported only in cases where they themselves were unable to catch the fugitive.
• Possibility of total inspection of the part. If there is a trial, then during its trial the reasons for the escape will become clear, which may be associated with the negative state of affairs in the unit. The command will not want to make this public.

Thus, only those who are truly dangerous to society are sent to trial. In this case, the trials are exemplary and the perpetrators are punished as severely as possible.

Mitigating and aggravating circumstances

Punishment for committing military crimes is carried out taking into account mitigating and aggravating circumstances, if any.

The main mitigating circumstances include:

1. Committing a crime for the first time. According to the provisions of Art. 338, this circumstance may even become a reason for exemption from liability.
2. Having small children.
3. Committing a crime in the presence of difficult circumstances that were a reason for desertion. More often we are talking about hazing at the place of duty, which becomes the reason for escape.
4. Confession. If done correctly, a confession may result in the crime being classified under a less serious article. 337.

Aggravating circumstances include:

• repeated desertion;
• the onset of serious consequences as a result of escaping from the place of duty;
• commission of a crime by a group of persons, including in the presence of a preliminary conspiracy;
• the most active role in planning, preparing and committing an illegal act;
• committing an unlawful act during a state of emergency or martial law.

The lists of mitigating and aggravating circumstances are not exhaustive. These circumstances, as well as the possibility of mitigating and aggravating the punishment due to their existence, are considered by the court on an individual basis.

What may be mitigating circumstances?

Mitigating circumstances, common to all crimes, are specified in Art. 61 of the Criminal Code of the Russian Federation. For desertion, due to the characteristics of the subject and the nature of the crime itself, mitigating circumstances may be:

1. the state of pregnancy of the serviceman;
2. young children;
3. committing a crime due to a combination of difficult life circumstances;
4. confession or active assistance in the investigation of the case.

In accordance with Part 2 of Art. 61 of the Criminal Code of the Russian Federation, the list of mitigating circumstances is open and the court may recognize and take into account other circumstances as mitigating ones.

Art. 338 of the Criminal Code of the Russian Federation contains an important note, according to which the commission of a crime due to a combination of difficult circumstances not only mitigates the guilt and reduces the punishment, but also exempts the person from criminal liability if desertion is committed for the first time.

A combination of difficult circumstances means the objective existence at the time of leaving the unit or place of service of unfavorable life situations of a personal, family or service nature that were perceived by the serviceman as negative (Resolution of the Plenum of the Supreme Court of the Russian Federation of April 3, 2008 No. 3). For example, serious health conditions of close relatives, funerals.

Legal advice on comments to Art. 338 of the Criminal Code of the Russian Federation

• Hello, the question is: how long will I be wanted if I left the army (escaped). It wasn’t me who ran away, the time will come - I’ll go and serve...

  Lifelong, usually until they find it. Is he running around the greenery now? ) Well, after your question, he won’t be on the wanted list for long...

Main conclusions

• If an individual who is liable for military service left the unit without permission, did not show up for service on time, or avoided it in every possible way, then he is considered a deserter.
• Desertion is subject to criminal liability on the basis of 337 and 338 legislative acts.
• The most severe form of punishment for deserters is imprisonment for as long as 10 years.
• If an individual became a deserter for the first time and was forced to commit this violation due to difficult life circumstances, then he may be exempt from criminal liability.

Arbitrage practice

Precedents under Art. 338 of the Criminal Code of the Russian Federation consider this norm as an independent crime or in combination. In 2016, the Judicial Collegium for Military Personnel considered the case of a major who committed murder and deserted.

Based on the totality of offenses, the major was charged with:

• 11 years in a general regime colony;
• a fine of 10 thousand rubles;
• deprivation of rank.

These sanctions were applied in accordance with the court verdict.
After which the major lost his rank, job and freedom. The defendant filed an appeal, but the higher court, having briefly reviewed the elements of the crime, left the appeal unsatisfied.

Another example is that the case was considered by a military board in 2011, in Moscow. The offender exercised the right to a jury trial. For desertion, the soldier was sentenced to 4 years in prison in a general regime colony. The citizen wanted to avoid military service altogether, so he hid in different localities.

Often leaving or avoiding service is accompanied by murders and robberies of innocent people. As a result, the punishment increases, although with proper work by the defender it could have been avoided. There are many such examples in judicial practice.

Punishment for desertion

Desertion is a serious crime and the sanctions for it are strict:

• imprisonment for up to 7 years for the main composition;
• imprisonment for up to 10 years for qualified offenses.

When assigning punishment and determining a specific term of imprisonment within the limits established by law, the court takes into account the duration of evasion from military service , the identity of the defendant, and also in connection with which the crime ceased to be committed.

Article 338 desertion

The new version of the article for desertion provides for sanctions for the following acts:

• leaving the place of duty or military unit;
• failure to appear at the place of duty after dismissal, vacation or weekend.

The listed acts committed by one person are punishable by imprisonment for a maximum of 7 years.

If these offenses are committed with weapons, by a group of persons by prior agreement, or by an organized group, then the sentence is increased to 10 years.

The legislator defines desertion as the unauthorized abandonment of a military unit. The glossary gives an expanded definition of this concept: the battlefield is added to the list. So, if a soldier escaped during hostilities, he will not be convicted by a military court, but by a criminal court.

This norm was amended in 2011: changes affected the term of serving the sentence for offenses under Part 2. After conducting a scientific analysis, lawyers came to the conclusion that in terms of the number of offenses committed by military personnel, in particular those who deserted, three years is too lenient a punishment. Therefore, the sanctions were tightened.

What is desertion

Many individuals become deserters unknowingly because they do not have a complete and correct understanding of this concept. If an individual who is liable for military service escapes from service, then he is considered a deserter.

The same applies to cases related to evasion from the army. In addition, there is a figurative meaning of such a word as desertion. Individuals who try in every possible way to avoid fulfilling their direct duties are also called deserters.

This article will discuss desertion, which is directly related to military service. Punishments for this offense are imposed on the basis of article number 338, which is part of the Criminal Code. The same source contains article number 337, which regulates the types of responsibility for leaving the territory of a military unit without permission.

Act No. 337 of the Criminal Code of the Russian Federation is devoted to the unauthorized departure of individuals from military units, and Article No. 338 approves punishments for desertion in a broader sense.

Article 338 of the Criminal Code of the Russian Federation

The first part of Article 338 of the legislative act states that if an individual voluntarily left a military unit or any other place in which he was serving, then he should be classified as a deserter. However, the circumstances under which the military man carried out an act of this kind are also important.

If there were absolutely no valid reasons and the individual fled only to avoid military service, then he is clearly considered a deserter. The same applies to situations related to failure to appear for duty. For the listed violations, criminal liability in the form of imprisonment is provided. The maximum duration of this sanction is seven years.

Desertion can be carried out in special ways. The second paragraph of the same Article 338 is devoted to such special cases, which implies the imposition of more severe forms of punishment on violators. If an individual left a military unit with a weapon that is a service weapon, then he will be convicted precisely under the second part of the article. The same applies to cases where desertion was committed not by one individual, but by an entire organized group.

Also, paragraph 2 of Article 338 is relevant if the military managed to commit desertion by prior conspiracy. If two or more individuals met in advance and discussed all the details of unauthorized excommunication from a military unit, and then successfully put all this into practice, then they are considered deserters who acted by prior agreement.

If two military personnel were absent from service without permission at the same time, but the court did not prove that they were in collusion, then each of them will be convicted under Part 1 of Article 338.

As for an organized group of deserters, this concept means the participation in a crime of a stable group of individuals who have previously united their efforts. Obvious signs of an organized group are the presence in its composition of a leader, according to whose instructions all other criminals acted.

In addition, if the deserters had some kind of joint plan, which was subsequently successfully implemented, then it is considered that they also committed a crime as part of an organized group. Another clear sign of the presence of an organized group is the preparation by several individuals of false documentation for leaving the territory of military service, as well as civilian clothing.

As for the punishments for those convicted under the second paragraph of Article 338, they also face imprisonment, but only for a ten-year term. There is a special note to this legislative act. It notes that in some situations a serviceman may be exempt from criminal liability.

The punishment can be canceled only if the individual violated the first paragraph of Article 338. In addition, this violation must necessarily be committed for the first time, and the offender must be forced to commit it by difficult life circumstances.

Article 337 of the Criminal Code of the Russian Federation

Also related to desertion is Article No. 337 of the Criminal Code of the Russian Federation, which regulates liability for narrower cases and is devoted exclusively to unauthorized excommunication from duty stations. The legislative act identifies four main elements of crime:

• First point. If an individual undergoing military service by conscription leaves the unit without permission, then as a result he will be punished on the basis of Part 1 of Article 337. The same applies to situations of not joining military service without any good reason. If a military man does not report to his unit after a business trip, vacation, or treatment within two to ten days after the end of his discharge, then the first paragraph of the article is relevant.
• Second point. Also, military personnel can serve their sentences in a disciplinary unit. If, during the period of disciplinary punishment, the individual on whom it was imposed escapes or leaves the unit without permission, using false documents, then criminal liability will be imposed on him under the second paragraph 337 of the legislative act.
• Third point. This part of the article comes into force if a military man serving under a contract or conscription leaves the unit without permission and is absent for a period of ten to thirty days. To impose liability for going AWOL, it must be proven that the individual was not motivated by any valid reasons. Also, the third part is relevant if the military man did not show up for duty and the period of his absence was at least ten days and a maximum of one month.
• Fourth point. If an individual has committed an offense that contains the elements of a crime described in the third paragraph of paragraph 337 of the act, but the period of his absence exceeded 1 month, then the last part of the same article comes into force. The note to the legislative act states that if an individual violated its rules for the first time in his life and did so on the basis of extenuating circumstances, then he may be released from liability.

If convicted under Part 1, the individual faces arrest, the duration of which can be no more than 6 months. In addition, the violator may be assigned to a disciplinary military unit for 1 year. If an individual is found guilty under paragraph 2 of Article 337, he will be imprisoned for a two-year period.

In situations of violation of the provisions of Part 3, a service restriction is provided for two years. They may also be assigned to a disciplinary colony for the same period. In addition, imprisonment for a period of three years is possible. The punishment regulated by paragraph 4 of Article 337 is imprisonment for five years.

Story

With the transition to regular armies, the establishment and development of military discipline, and the educational training of soldiers, desertion

the actual battlefield began to diminish;
but escapes from service in peacetime developed with enormous force. The incredible burden of service, the extreme length of its terms, the disorder of relations between superiors and subordinates, the abuses of superiors due to indiscriminate recruitment - made escape from service a mass, spontaneous phenomenon, which resulted in endlessly harsh punishments, and periodically declared amnesties, and huge monetary rewards. rewards for informers and the like. Only in the 19th century, the adoption of improved recruitment systems, a reduction in service life and, most importantly, the establishment of a strictly defined legal order in the army, which transformed the entire essence of military life, turned desertion
from a mass phenomenon into an individual phenomenon.
The ancient Egyptians cut off the tongues of those who fled during the battle [ source not specified 1431 days
].
The Greeks deprived deserters of honorary positions, dressed them in shameful clothes, shaved half of their heads [ source not specified 1431 days
] and exhibited them in this form for three days on the market square;
Not a single girl could marry a fugitive Spartan, as a dishonest man. In Rome, desertion
was punishable by confiscation of property and the death penalty or sale into slavery (according to one version, this is how Spartacus became a gladiator slave).
The ancient Germans hung deserters from trees as traitors; other commanders, however, limited themselves to cutting off the nose, ears, tongue or gouging out eyes. During the period of mercenary troops, along with escape from service in the proper sense, an unauthorized transfer to service from one company to another or from one type of army to another came to the fore, for which the German codes prescribed, as well as for desertion
from the battlefield, the death penalty.
Gustav Adolf established a special punishment for the desertion
of an entire unit if it flees without offering proper resistance.
With special energy, but unsuccessfully, she fought against desertion
in Prussia.

Is it possible to appeal

Possibility of appealing the verdict under Art. 338 of the Criminal Code of the Russian Federation is the legal right of the convicted person, as with any other court decision or resolution.

A court sentence that has not entered into legal force can be appealed to a higher military court within 10 days, either by the convicted person or by his legal representative.

So, desertion, like any other military crime, can only be committed by a limited circle of persons. Despite the severity of this violation, and the severe punishment that follows it, this is one of the few offenses for which the perpetrator, under certain circumstances, can avoid criminal liability and punishment.

Comment on the article

Among the crimes committed during military service, desertion is considered dangerous. This offense negatively affects the military unit from which the soldier deserted. The more often such a crime is committed, the less authority the army enjoys.

The legislator left a note to the article: if a serviceman deserted for the first time, he can avoid criminal liability due to the difficult circumstances that prompted him to escape or fail to appear. In this note, the legislator shows that he understands the soldier and takes his place.

The subject of the crime is military service and the procedure for completing it. Violating Art. 338 of the Criminal Code of the Russian Federation, the soldier violates the duties regulated by the Constitution, specifically Art. 59. This norm states that a citizen is obliged to defend his Motherland and Fatherland.

The subject of the offense here is special: not every citizen is suitable as a subject. The offender is:

1. A person conscripted into the army.
2. A citizen who has signed a contract with the state.

Taking these factors into account, the subject of the offense is a person who has reached the age of 18 years.

An offense is considered committed when a serviceman does not arrive at the place of duty or leaves it without the permission of a senior rank. If the offender himself returned to the unit and admitted that he left the unit without permission, he still cannot avoid punitive measures. In this case, turning yourself in will only soften the punishment, but will not completely remove it. But if at the time of the commission of the offense the soldier had compelling reasons to leave the unit or difficult circumstances that forced him to do so, then by a court decision he is not subject to sanctions. Such reasons include the death of a loved one and other circumstances equivalent to this reason.

Reporting an impending offense is not encouraging, but, from the point of view of fulfilling civic duty, it deserves praise.

Criminal liability for desertion occurs after the offender has returned to the military unit after voluntarily leaving it. The offense has a statute of limitations - it expires when the person who committed the offense reaches conscription age. If a military man serves under a contract, then in his case the statute of limitations is three years.

Escape coupled with theft of a weapon is classified as a combination of offenses and is punished accordingly. An offense specified in the norm is regarded as a serious crime.

How is it different from AWOL?

Desertion must be distinguished from the related offense “Unauthorized abandonment of a unit or place of service” (Article 337 of the Criminal Code of the Russian Federation), the so-called. AWOL.

The distinction should be made according to the direction of intent and the purpose of the serviceman’s actions: if there is a goal of evading service, then this is desertion, and if there is no such goal and the serviceman who left or did not get to his place of service/unit, for example, wanted to take a walk around the city, i.e. simply temporarily evading duties, then this is AWOL.

But if, during such festivities around the city, he decided not to return to service at all, then what he did would qualify only under one article, as desertion. Therefore, the signs of the subjective side - the internal attitude of a person to the act committed - are very important for qualification.

It must be said that within the meaning of Part 3 and Part 4 of Art. 337 of the Criminal Code of the Russian Federation, AWOL can last more than 10 days, or more than a month, and this will not constitute desertion. The reason for desertion is precisely the purpose of not showing up for service. In practice, it is quite difficult to distinguish between these compositions due to the difficulties of the evidentiary process.

The direction of intent and the purpose of evading service can be indicated by the production and use of the above-mentioned forged documents and other illegal actions of the serviceman.