ST 51 of the Criminal Code of the Russian Federation.
1. Restrictions on military service are imposed on convicted military personnel performing military service under a contract for a period of three months to two years in cases provided for by the relevant articles of the Special Part of this Code for committing crimes against military service, as well as convicted military personnel performing military service under contract, instead of corrective work provided for in the relevant articles of the Special Part of this Code.
2. From the monetary allowance of a person sentenced to military service restrictions, deductions are made to the state's income in the amount established by a court verdict, but not more than twenty percent. While serving this sentence, the convicted person cannot be promoted in position or military rank, and the term of punishment is not counted towards the length of service for the assignment of the next military rank.
Commentary to Art. 51 Criminal Code
1. The restriction on military service has the following features: a) applies only to military personnel performing military service under a contract; b) excludes the possibility of their promotion while serving a sentence in office and military rank, and the term of punishment is not counted towards the length of service; c) from the monetary allowance of the convicted person, deductions are made to the state income in the amount established by the court verdict, but not more than 20%.
2. The commented type of punishment is imposed, as a rule, for committing crimes against military service, provided for in Chapter 33 of the Criminal Code, since sanctions in the form of restrictions on military service are established only for the commission of these crimes. However, the law provides for the possibility of imposing this type of punishment for other crimes instead of correctional labor provided for the commission of these acts by the relevant articles of the Special Part of the Criminal Code.
3. The amount of deduction from the monetary allowance of a convicted serviceman established by a court verdict is calculated from the official salary, salary according to military rank, monthly and other allowances and other additional monetary payments (Article 144 of the Penal Code of the Russian Federation).
Restrictions on military service are assigned only to contract soldiers
Restrictions on military service are assigned only to military personnel undergoing military service under a contract , including those who have entered into the first contract for military service and have not served the statutory conscription periods at the time of sentencing. Military personnel undergoing military service upon conscription are not subject to restrictions on military service.
In the event that a crime was committed by a serviceman during military service under a contract, but at the time of sentencing the contract had expired and a new contract had not been concluded with the serviceman, a restriction on military service cannot be imposed.
If a serviceman committed a crime during his military service, but at the time of sentencing he lost the status of a military serviceman, he cannot be assigned a restriction on military service. Moreover, if there is no other type of punishment in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, he should be given a more lenient punishment than provided for in the sanction of the corresponding article. Link to Art. 64 of the Criminal Code of the Russian Federation is not required in such cases.
Second commentary to Art. 51 of the Criminal Code of the Russian Federation
1. Restriction on military service is the main type of punishment imposed on convicted military personnel serving under a contract. This type of punishment is a modification of correctional labor in relation to the named category of military personnel.
2. In cases specifically provided for by the sanctions of the relevant articles of the Special Part of the Criminal Code of the Russian Federation for committing crimes against military service, a restriction on military service is assigned for a period of three months to two years. And instead of correctional labor, this punishment is imposed for a period of two months to two years.
3. A feature of the type of punishment under consideration is the convict’s continued military service (albeit on a compulsory basis) at his previous place of service, burdened by the withholding of sums from his allowance to the state in the amount established by a court verdict, but not more than twenty percent. Since the lower threshold for withholding funds is not established by law, unlike correctional labor, theoretically it can be lower than five percent.
4. While serving a sentence, a convicted person cannot be promoted in position or military rank, and the term of punishment is not counted towards the length of service for the assignment of the next military rank.
The procedure and conditions for the execution of punishment in the form of restrictions on military service are regulated by Chapter 18 of the Penal Code of the Russian Federation.
Features of restrictions on military service. Differences and similarities with correctional labor
Punishment in the form of restrictions on military service has common features with correctional labor (they have in common - monetary deductions from the convicted person). However, these two punishments are imposed on different subjects and under different conditions.
Restrictions on military service are imposed for a period of three months to two years, while correctional labor is assigned for a period of two months to two years. In addition, the following circumstances are specific to restrictions on military service:
- continuation of military service by convicts at their previous place of service, but on a compulsory basis;
- withholding to the state income from the monetary allowance of a convicted serviceman the amounts established by a court verdict, but not exceeding 20%;
- exclusion of the possibility of promotion and military rank. The term of punishment is not counted towards the length of service for the assignment of the next military rank.
The specified restrictions on military service must be imposed in full; the current legislation does not provide for the possibility of partially applying these restrictions.
In addition, the criminal law does not allow any other restrictions on military service to be imposed on convicted military personnel.
Third commentary to Article 51 of the Criminal Code of the Russian Federation
1. Restriction on military service is the main type of punishment and applies only to military personnel performing military service under a contract. Such persons include citizens of both male and female sex who have voluntarily entered into, in accordance with the Regulations on the Procedure for Military Service, a written agreement (contract) with the Ministry of Defense of the Russian Federation for a period of three, five or ten years, as well as for a shorter period (before the age limit military service). According to Part 12 of Art. 16 of the Penal Code, this punishment is carried out by the command of the military units in which the convicted military personnel serve.
2. The content of this type of punishment consists of the following legal restrictions: firstly, from the monetary maintenance of the convicted person, a deduction is made to the state's income in the amount established by the court verdict, but not more than 20%; secondly, while serving this type of punishment, the convicted person cannot be promoted in position or military rank; thirdly, the term of punishment is not counted towards the length of service for the assignment of the next military rank. If, taking into account the nature of the crime committed and other circumstances, the convicted serviceman cannot be retained in a position related to the management of subordinates, he, by decision of the relevant commander of the military unit, is moved to another position - both within the military unit and in connection with a transfer to another unit or locality, of which the court that passed the sentence is notified.
3. Restrictions on military service are applied in two cases: when the sanction of the article of the Special Part provides for this type of punishment for crimes against military service (parts 1 and 2 of article 332, part 1 of article 333 of the Criminal Code, etc.) period from three months to two years; and military personnel instead of correctional labor provided for in the articles establishing liability for specific crimes (part 1 of article 115, part 1 of article 116, etc.), respectively, for the period specified in these sanctions.
4. The amount of deduction from the monetary allowance of a convicted serviceman established by a court verdict is calculated from the official salary, salary according to military rank, monthly and other allowances and other additional monetary payments.
The law does not establish a minimum percentage of deductions for state income. The procedure for executing punishment in the form of restrictions on military service, in addition to the Penal Code of the Russian Federation, is regulated in detail by the Rules for Serving Criminal Sentences by Convicted Military Personnel, approved by Order of the Minister of Defense of the Russian Federation of July 29, 1997 N 302 (as amended on September 4, 2006) (see: Bulletin normative acts of federal executive authorities. 1998. No. 1). ‹ Article 50. Correctional workUp Article 52. Repealed. ›
Article 51 of the Code of Criminal Procedure of the Russian Federation. Mandatory participation of a defense attorney (current version)
1. The law recognizes the participation of a defense attorney as mandatory if:
- in the case there is no written statement from the suspect or accused to refuse the assistance of a defense lawyer (clause 1, part 1, article 51, part 1, article 52);
- the suspect or accused is only a minor, although it is not provided that the right to the mandatory participation of a defense attorney is reserved for a minor accused (suspect) who committed the incriminated act before adulthood, but reached the age of 18 during criminal proceedings (clause 2, part 1) ;
- a person is accused of committing a crime for which not only the death penalty, but also imprisonment for a term of over fifteen years or life imprisonment can be imposed as a punishment (clause 5, part 1);
- at least one of the accused filed a petition for the criminal case to be considered by a court with the participation of a jury, and if previously the defense lawyer had to participate already when the accused was announced about the end of the preliminary investigation and the case materials were presented for review (Part 1 of Article 426 of the Code of Criminal Procedure of the RSFSR) , then now his mandatory entry into the case occurs at a later time, namely at the time the accused submits a motion to consider the case by a jury (Part 2 of Article 51 of the Code of Criminal Procedure of the Russian Federation), which, within the meaning of Parts 4 - 5 of Art. 217 of the Code of Criminal Procedure takes place after familiarization with the case materials;
- at least one of the accused filed a petition for consideration of the criminal case in a special trial procedure established by Chapter. 40 Code of Criminal Procedure.
In accordance with Part 6 of Art. 247 of the Code of Criminal Procedure (introduced by the Federal Law of July 27, 2006), the participation of a defense attorney in absentee proceedings is mandatory.
2. Physical or mental disabilities referred to in paragraph 3 of part 1 of this article are deficiencies or illnesses due to which the suspect or accused cannot independently exercise his right to defense, i.e. preventing the personal exercise of the rights of a suspect or accused if he were deprived of the assistance of a defense attorney and legal representative. Physical disabilities are primarily defects or diseases such as muteness, deafness, blindness or visual impairment, as well as physical defects and injuries that significantly limit the ability to move, due to which the accused or suspect experiences additional difficulties, for example, when the need arises visits to the investigator, prosecutor, judge to file complaints, submit petitions or familiarize themselves with the case materials (absence or illness of legs, impaired motor functions). Physical disabilities are not only defects and injuries, but also the presence of an acute or chronic serious illness in the suspect or accused, due to which he cannot correctly perceive and evaluate the progress and results of investigative and other procedural actions. Physical disabilities that do not interfere with the exercise of procedural rights, even if they are of a very serious nature (for example, the absence of a hand that the accused does not use when writing), are not grounds for the mandatory participation of a defense attorney. Mental disabilities that require the mandatory participation of a defense attorney should also be considered mental disorders that do not exclude the sanity of the suspect or accused. In unobvious cases, to resolve this issue, it is necessary to obtain a medical report (by analogy with clause 4, part 1, article 208) or even conduct a forensic examination. It should be borne in mind that all doubts are interpreted in favor of the accused or suspect. Therefore, even the very fact of ordering such an examination can serve as a reason for providing mandatory assistance from a defense lawyer, as is the case in proceedings on the application of compulsory medical measures (Article 438).
3. Consideration of a criminal case without the participation of a defense lawyer in the cases provided for in this article is a significant violation of the criminal procedural law, entailing the reversal of the sentence (clause 4, part 2, article 381).
4. The mandatory participation of a defense lawyer can be ensured both by inviting a defense lawyer for the suspect, accused or other persons (Part 1 of Article 50) and by appointment (Parts 2 - 4 of Article 50).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Cases of imposing restrictions on military service
Restrictions on military service are imposed in the following cases:
- when the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, which qualifies a crime against military service, provides for punishment in the form of a restriction on military service;
- when the restriction on military service in accordance with Part 1 of Art. 51 of the Criminal Code of the Russian Federation is assigned instead of correctional labor.
Restrictions on military service are assigned, as a rule, for committing crimes against military service provided for in Chapter 33 of the Criminal Code of the Russian Federation (Articles 332 - 334, 336, 337, 339 - 349 of the Criminal Code of the Russian Federation), since sanctions in the form of restrictions on military service are established only for committing these crimes. However, the law provides for the possibility of imposing this type of punishment for other crimes instead of correctional labor provided for the commission of these acts by the relevant articles of the Special Part of the Criminal Code of the Russian Federation.
Concept
Restriction on military service is a type of criminal punishment, characterized in the form of a restriction on career advancement (promotion in rank) and the deduction of a certain percentage of the serviceman’s current salary from the state income.
The key point is that only citizens performing military service under a contract can be the subjects of this type of punishment. As a positive side, it is worth noting the previously announced opportunity to continue further performance of your contract, which is especially important if the person who violated the law is a professional in his field.
What payments received by military personnel are not withheld?
The amount of deduction established by a court verdict from the salary of a convicted serviceman is calculated from the official salary, salary according to military rank, monthly and other allowances and other additional monetary payments (Article 144 of the Penal Code of the Russian Federation).
These payments do not include compensation for renting (subletting) housing, for sanatorium-resort treatment, insurance payments, a one-time allowance upon dismissal from military service, travel allowances and other payments that are not included in the pay of military personnel.
In addition, deductions should not be made on income received by a military member not in connection with military service. For example, military personnel are not prohibited from engaging in scientific, teaching and creative activities. Therefore, the remuneration received for this work is not included in the salary, and, accordingly, deductions cannot be made from it in connection with serving the restriction on military service.
