Article 338 of the Criminal Code of the Russian Federation: desertion and criminal liability, part 1, when it is considered completed

Art.
338 of the Criminal Code of the Russian Federation is listed as desertion and provides for serious punishment. Despite the fact that the article concerns a military serviceman, the offender will serve his sentence not in a disciplinary military unit, but in a regular prison. Multi-channel free hotline Legal advice on criminal law. Every day from 9.00 to 21.00

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What does the article say? 338?

The article for desertion consists of 2 parts and a note:

I provides a definition of desertion and the type of punishment for its commission;
II discusses qualified types of desertion and possible liability for committing such crimes.

Note in Art. 338 contains circumstances, the combination of which allows one to avoid criminal liability for desertion.

Basic provisions of Art. 338

Desertion is leaving a place of service for the purpose of evading its completion, or failure to report to a unit for the same purpose. According to Part 1 of Article 338 of the Criminal Code of the Russian Federation, desertion is punishable by imprisonment for up to 7 years. The crime is serious.

The punishment can be significantly increased if a number of signs are present:

desertion with weapons;
desertion committed as part of a group, including by prior agreement.

If desertion was committed in this way, then the maximum possible penalty for its commission increases to 10 years in prison. The culprit will serve his sentence in a maximum security colony.

If a soldier deserted for the first time, and the reason for this was a combination of difficult circumstances, then he may be released from liability. A combination of difficult circumstances is not a specific definition. They can mean different situations. The court considers them individually.

The difference between desertion and related norms of the Criminal Code of the Russian Federation

The closest offense is the crime provided for in Art. 337. Moreover, the crimes provided for in Art. 337 and 338 have a number of significant differences. The main one is the purpose of leaving a unit or other place of service.

Responsibility of military personnel for committing crimes against military service in the Criminal Code of the Russian Federation

In the case of Art. 337 the culprit does not intend to evade service on a permanent basis. At the same time, this is precisely the main purpose of desertion. The investigation and the court must consider in detail all aspects of illegal acts of this type committed, so as not to make a mistake with the classification.

What is desertion?

Deserter - who is it? To answer this question, it is necessary to understand what the term “desertion” means.

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Desertion is a serious crime committed by a military personnel out of fear, contempt for the state or unwillingness to serve in the army. Desertion is considered any abandonment of service or unit committed for the sake of avoiding military training. In addition, desertion is the deliberate failure to appear for duty in the event of a business trip, assignment, transfer, end of vacation or sick leave. It is worth understanding that from the point of view of military affairs, desertion can only be committed by conscripts.

It follows that a deserter is a person who has escaped from military service or is hiding from conscription into the army.

Comments to Art. 338

Among the main comments left on Art. 338 legal theorists include:

The basic law of the country - the Constitution of the Russian Federation - establishes that protecting the country is the duty of every citizen of Russia. The list of persons subject to conscription is contained in Federal laws.
Desertion is recognized as committed from the moment the serviceman leaves the unit or other place of service, as well as failure to appear at the place and time specified by the command in order to evade service. The length of absence of the culprit does not affect qualifications. It is taken into account when determining the punishment. Desertion is a continuing criminal act. It continues until the deserter surrenders or is detained.

The peculiarity of a continuing crime is that in fact it has no statute of limitations. It will begin to be calculated from the moment the perpetrator of the crime surrenders or is detained.

The subjective side is characterized by the presence of direct intent and the presence of a goal to evade service. This is what distinguishes desertion from other similar crimes.
Qualified types of crime include desertion with weapons entrusted to a serviceman, as well as by a group of persons. The concept of a group of persons is disclosed in Art. 35 and comments to it.

The subject of such a crime as desertion can be any military serviceman serving under conscription.

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:

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.
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.
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.

Criminal liability for evasion of military service under the Criminal Code of the Russian Federation, Article 328

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.

Criminal legal characteristics of desertion

Read more: The approach consists of a fundamental refusal to separate the causes and conditions that are declared to be factors of crime[13]

Plan

Introduction

Chapter I. Desertion: history and concept

§1. History of criminal legal regulation of liability for desertion in Russian legislation

§2. Concept of desertion

Chapter II. Criminal legal characteristics of desertion

§1. Object of desertion

§2. The objective side of desertion

§3. Subject of desertion

§4. The subjective side of desertion

Chapter III. Peculiarities of qualification of desertion and regulation with related compositions

Conclusion

Bibliography

Introduction

Military service is a special type of public service intended for the armed defense of the Fatherland from military aggression.

The Russian Armed Forces are not an isolated social mechanism, but an organic and integral part of our society. In the context of sharply aggravating social contradictions, constantly worsening disintegration processes, there is a sharp drop in the prestige of military service, the number of offenses and crimes committed by conscripts in order to evade military service is growing, which ultimately weakens the combat readiness of military units and units, creating threat to the country's military security and national security.

Evasion from military service occurs due to many reasons and conditions, which ultimately leads to disorganization and failure of assigned tasks, causing material and other damage. In this regard, evasion of military service poses a serious problem and danger for society and the state as a whole. Basically, among evasion of military service, the most common are: unauthorized abandonment of a unit or place of service and desertion.

Today, this topic is one of the most pressing, since by committing these crimes, military personnel evade fulfilling their duties, violate the requirements of military discipline, which ultimately leads to a weakening of the combat effectiveness and combat readiness of the Armed Forces, equipped with complex combat weapons. equipment and weapons for collective use. These types of weapons require clear, timely and coordinated actions by many military personnel. Therefore, even isolated cases of unauthorized abandonment of a unit can lead to grave consequences, especially in wartime, in a combat situation, while on guard duty, on combat duty, etc. In order to reduce cases of evasion from military service, it is necessary to identify the reasons and conditions conducive to committing of this crime, as well as carry out the necessary preventive measures that are necessary in order to reduce crimes such as unauthorized abandonment of a unit or place of service and desertion. In principle, this explains the choice of the topic of the thesis.

The objectives of this thesis are:

1. Give the concept of the corpus delicti, analyze the state and dynamics of the crime of desertion.

2. What are the reasons and conditions that influence and contribute to the unauthorized leaving of a unit or place of service and what preventive measures need to be taken to reduce the number of cases of unauthorized leaving of a unit or place of service and desertion

3. Compare these two crimes, find out what are their similarities and what are their differences and how this affects the qualification of the crime when assigning punishment.

In order to implement the assigned tasks, the author of the thesis provides a criminal legal and criminological analysis of unauthorized abandonment of a unit or place of service and desertion. The thesis consists of an introduction, three chapters and a conclusion.

The first chapter provides historical and legal regulation of liability for desertion in Russian legislation, analyzes in detail the criminal law analysis of these crimes, and identifies controversial qualification issues that investigators sometimes encounter in practice when qualifying crimes.

The second chapter gives the concept of the objective side of the crime, and also describes in detail the subjective side of the crime.

The third chapter provides a comparative analysis of these crimes in order to identify their similarities and differences.

The theoretical basis of the thesis research is: works, monographs, articles from various authors from magazines. Basically, military crime is given much attention by such scientists as Akhmetshin H.M. in his works “Crimes against the order of military service”, Matskevich I.M., who covers the problems of military crime in his articles - “Crime of Military Personnel”, “Amercenary-Violent Crime in the Armed Forces”, “Causes and Conditions of Crime of Military Personnel”, Ter -Akopov A.A. — “Military Crimes”, Zakharyash E.S. in his works he gives recommendations to unit commanders on how to work with personnel in order to prevent evasion from military service, Eminov V.E. and others.

Also, when writing the thesis, the author used the guidelines of the Plenum of the Supreme Court, bulletins of the administration of military courts, which explained controversial issues in the qualification of evasion of military service.

The practical basis of the diploma research is the investigative practice of criminal case materials, statistical data from the military prosecutor's office of the Makhachkala garrison, survey results, interviews with practical workers of the military prosecutor's office of the Makhachkala garrison.

Chapter I. Desertion: history and concept

§1. History of criminal legal regulation of liability for desertion in Russian legislation

Before defining the concept of unauthorized abandonment of a unit and desertion, it must be said that an analysis of the history of the development of legislation on criminal liability for these crimes suggests that the very concepts of unauthorized abandonment of a unit and desertion have undergone some changes in the process of development and improvement of the Armed Forces of the Russian Federation. For example, the Regulations “On Military Crimes” of 1924 defines “unauthorized abandonment by a military member of a unit or place of service for more than six days, even if it was committed without the purpose of completely evading military service” as desertion. Although in the current Criminal Code of the Russian Federation this definition is covered by the concept of unauthorized abandonment of a unit or place of service.

So Art. 337 of the Criminal Code of the Russian Federation reveals several elements of unauthorized abandonment of a unit or place of service. Part 1 of this article defines unauthorized abandonment of a unit or place of service, as well as failure to appear on time for service without good reason upon dismissal from a unit, upon assignment, transfer, from a business trip, vacation or medical institution lasting more than two days, but not more than ten days. committed by military personnel undergoing military service upon conscription. Part 2 art. 337 of the Criminal Code of the Russian Federation provides for the same act, but already committed by a military serviceman serving a sentence in a disciplinary military unit. Part 3 art. 337 of the Criminal Code of the Russian Federation - as unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service for a period of more than ten days, but not more than one month, committed by a military serviceman undergoing military service by conscription or under a contract, and already part 4 Art. 337 of the Criminal Code of the Russian Federation speaks of unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service lasting more than one month, committed by a military serviceman undergoing military service on conscription or under a contract.

In the Note to Art. 337 of the Criminal Code of the Russian Federation, the legislator indicated that a serviceman who for the first time committed unauthorized abandonment of a unit or place of service may be exempt from criminal liability if the unauthorized abandonment of the unit or place of service was a consequence of a combination of difficult life circumstances. The investigator should pay special attention to identifying such circumstances, since if they are not discovered during the preliminary investigation and the criminal case is sent to court, and become clear during the trial, this may lead to an acquittal.

The concept of desertion is contained in Part 1 of Art. 338 of the Criminal Code of the Russian Federation, which defines desertion as “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.”

Part 2 art. 338 of the Criminal Code of the Russian Federation provides for criminal liability for desertion committed “with weapons entrusted in service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group.” Fundamentally new in the Criminal Code of the Russian Federation is the establishment of special liability for desertion with weapons that are entrusted to a serviceman. Neither the pre-revolutionary legislation of Russia, nor the criminal legislation of the subsequent period knew of such a composition, which necessitates the need for rules for its qualification and differentiation from related compositions.

When investigating criminal cases of this category (that is, desertion committed with a weapon), the investigator of the military prosecutor's office should remember that the actions of the perpetrator should also be additionally qualified under Art. 226 of the Criminal Code of the Russian Federation in cases where the unlawful actions of the perpetrator contain signs of not only desertion, but also signs of theft of weapons. If desertion with a weapon does not contain signs of theft of this weapon (for example, when a serviceman with a weapon entrusted to him was serving to guard an object located outside the territory of a military unit, or was returning from a business trip and, realizing his intention to evade military service, but had goals theft of weapons and did not throw them away, but decided to keep them and take measures to return these weapons to the military unit), his actions will not contain signs of a crime under Art. 226 of the Criminal Code of the Russian Federation, and he will bear criminal liability under Part 2 of Art. 338 of the Criminal Code of the Russian Federation.

Note to Art. 338 of the Criminal Code of the Russian Federation is similar to the note to Art. 337 of the Criminal Code of the Russian Federation provides for the possibility of releasing a serviceman from criminal liability if desertion was the result of a combination of difficult circumstances. However, this note can only be applied if the serviceman committed desertion without qualifying circumstances (Part 1 of Article 338 of the Criminal Code of the Russian Federation).

Traditionally, desertion is understood as unauthorized abandonment of military service, or, less commonly, evasion of conscription into the army. The word itself comes from the French déserteur - fugitive, traitor, and has been used as a legal term since the late Middle Ages.

With the transition to regular armies, the establishment and development of military discipline, the educational training of soldiers, escape from service and from the battlefield itself began to decrease; 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, periodically declared amnesties, and enormous monetary rewards. rewards for informers, etc. 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 escape from service from a mass phenomenon into an individual phenomenon. The ancient Egyptians cut off the tongues of those who fled during battle. The Greeks deprived deserters of honorary positions, dressed them in shameful clothes, shaved half of their heads 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, escape from service was punishable by death and confiscation of property. 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 escape from service from the battlefield, the death penalty. Gustav Adolf established a special punishment for the escape from service of an entire unit if it flees without offering proper resistance. With special energy, but unsuccessfully, she fought against desertion in the 18th century. Prussia.

During the First World War, a total of about 1.6 million military personnel deserted from the army of the Russian Empire. A particularly strong “wave” of desertion overwhelmed the Russian Armed Forces at the very end of the war - in 1916-1917[1].

During the entire period of the Great Patriotic War, approximately 2.5 million people escaped from the ranks of the Soviet army. However, the most massive cases of desertion in European history were recorded in the army of the Third Reich.

In 1945, already at the end of the Second World War, about 3.5 million people voluntarily fled from its ranks (entire regiments left the front). This happened mainly on the Western Front, where the Nazis were opposed by American troops, whom the Germans were not too afraid of.

In the United States, during the years of the war in Indochina (1960–70s), desertion in the army increased sharply (almost 2 times), including for political reasons.

In Russia, military criminal law defined escape from service (desertion, Fahnenflucht) as unauthorized abandonment of a place of service with the intention of leaving service altogether. The subject of the Escape can be any military serviceman, regardless of whether he is in compulsory or voluntary service [In the German military. mouth regarding punishments, this principle is categorically expressed in all §§, providing for dismissal from service.][2]. The criminal act in case of Escape consists of two elements: internal, subjective - the intention to leave the service, and external, objective - unauthorized leaving the place of service, which in itself constitutes an offense called unauthorized absence (see the corresponding article). From this duality of the composition of Escape from Service stems a double view of its essence; some legislation, for example, German, attaches primary importance to the first point; others, for example, French, determine the intention to leave the service when escaping from service by some external sign, most often by the duration of absence. The advantages, undoubtedly, lie on the side of the first glance: no external sign can unmistakably indicate the intention of the absentee. Russian military mouth. (XIX century) about the order. holds the second opinion: according to Art. 128 “the unauthorized absence of a serviceman, which lasts more than 6 days in peacetime, and more than 3 days in wartime, is recognized as escape from service.”[3] Six- and three-day periods are normal: for lower ranks who have been in service for less than 6 months, they increase to 15 days in peacetime and 7 days in wartime; In view of the enemy, for all military personnel, absence for more than a day is recognized as Escape from service. Punishability of Escape from service in action. law is made dependent on a number of conditions. The law first of all defines the various grounds for punishability of officers and lower ranks, then sets out a special system of circumstances that increase guilt, and, finally, introduces two special exceptions: regarding repetition and regarding the punishability of instigators. Punishments for officers and civilian officials of the military department: in peacetime - exclusion from service, dismissal or detention in a guardhouse; in the military - exclusion from service with deprivation of ranks[4]. Repetition doesn't really matter. Punishment for lower ranks: for the first escape from service - military prison, for the second - disciplinary battalions, for the third - deprivation of all status rights and exile to Siberia for a settlement. In wartime, the same punishments are imposed, with the court being given the right to increase them by one or two degrees. In case of voluntary appearance, the punishment may be reduced by one or two degrees[5]. Circumstances that increase guilt are considered to be: taking away government-issued clothing (exceeding what is necessary), ammunition items, military supplies and weapons, taking away a government-issued horse, being on the run for more than 6 months, committing it from custody and crossing the border[6]. A repetition of Escape from Service for lower ranks is considered to be the commission of a new Escape from Service not only after trial and punishment for the previous one, but also when the previous punishment has not yet been served[7]. Incitement to escape from service is given the character of an independent crime, entailing, in contrast to the general rules of the code on incitement, criminal liability even when the instigator did not commit escape from service[8]. Special types of Escape from service: Escape from service in sight of the enemy - a link to settlement or higher military correctional punishment (Article 136); Escape from service to the enemy is a punishment for high treason (Article 137); Escape from service of several military personnel by prior agreement. The time spent on the run for lower ranks in conscript service is excluded from the service period. The power of statutes of limitations does not apply to escape from service; but if the fugitive is caught after reaching the age of 34, then military punishment is replaced for him by general punishment, and after serving the sentence he will not return to service. Per 1000 people the average list status in 1890 of those who escaped was 2.77, in 1891 - 2.70, in 1892 - 2.59, and excluding those caught and those who voluntarily appeared - 0.71, 1.09 and 0, 88. The absolute number of those who escaped in 1892 was 2168. Amnesties were applied to those who escaped from service; Thus, in the All-Merciful Manifestos of November 14, 1894 and May 14, 1896, complete forgiveness was announced to all lower ranks on the run if they voluntarily appear within a year of the announcement of forgiveness and if, except for escape from service, they are not accused of other crimes[9].

§2. Concept of desertion

The crime rate in the military per 100 thousand personnel is usually twice the crime rate in civil society. This is due to a number of circumstances, but primarily due to the fact that military service is carried out mainly by young men - the most criminogenic part of the population in demographic terms.

This ratio persisted for a long time in the USSR. In 1950, the crime rates in civil society and in the military (army and navy), respectively, were 400 and 958, in 1960 - 307 and 656, in 1970 - the comparable indicators were almost equal (433 and 426). After the intensive growth of crime in the country that began in the mid-60s, crime among military personnel began to increase. Commanders and superiors responded to the uncontrollable increase in crime among military personnel by increasing concealment of crimes from records, especially military ones. In 1980, the crime rate in the military was 534, and in civil society 969, in 1990 - 794 and 969, respectively, and in the last year of the existence of the USSR Armed Forces - 893 and 1115. Crime in the Russian Armed Forces continued to grow rapidly. The number of people unwilling to join military service is increasing. In 2006, after the spring conscription, they were only 51% staffed1.

Article 338 of the Criminal Code of the Russian Federation provides for liability for desertion, i.e. 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.

Desertion is one of the most serious and dangerous military crimes; it is, as a rule, a manifestation of cowardice and selfishness, evasion of the constitutional duties of citizens of the Russian Federation, a dangerous crime against the rules of military service, since a citizen completely evades the duties of military service.

In Art. 59 of the Constitution of the Russian Federation states: “Defense of the Fatherland is the duty and responsibility of a citizen of the Russian Federation.” Desertion, therefore, is a violation of the constitutional duty of citizenship. In accordance with Art. 15 of the Criminal Code of the Russian Federation, this crime is classified as serious.

The study of the causes and conditions of crime is the leading problem of criminology and a necessary condition for the fight against crime[10]. Without understanding the mechanism of action of the causes and conditions, it is impossible to offer a criminological forecast or (most importantly) to conduct a targeted fight against crime in the army[11].

There are two approaches to defining the concepts of causes and conditions of crime:

1. It consists in a more or less precise separation of causes from conditions, when only those social processes that give rise to crime are declared causes, and conditions are those that do not themselves give rise to, but contribute to, accelerate, catalyze the commission of crimes[12].

Read more: The approach consists of a fundamental refusal to separate the causes and conditions that are declared to be factors of crime[13]

Information about the work “Criminal-legal characteristics of desertion”

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