Desertion implies criminal liability and, unfortunately, occurs quite often. I am the head of a military unit and throughout my practice I have repeatedly encountered deserters. After this, individuals who escaped from military service were sentenced on the basis of relevant legislation.
In order for the military, before deserting, to think carefully and sensibly assess all the consequences that await them, I will talk about the types of criminal liability for offenses of this nature. The types and terms of punishment will be given not only for desertion on the basis of Article 338 of the Criminal Code of the Russian Federation, but also for unauthorized abandonment of official positions in accordance with Article 337 of the same code.
Comments to Art. 337 of the Criminal Code of the Russian Federation
It consists of 4 parts and one note. Part 1 of Article 337 of the Criminal Code of the Russian Federation specifies penalties for the following offenses:
- unauthorized abandonment of a military unit;
- failure to appear for duty without objective reasons during dismissal;
- failure to appear at the unit upon assignment or transfer from 2 to 10 days.
The first part of the commented article explains that punishments are imposed for such offenses if they occurred on the part of a serviceman serving in the army on conscription.
Reference . Abandonment of a military unit means abandonment of its territory. The usual leaving of the barracks within the military unit will not be considered unauthorized departure.
The difference between desertion and unauthorized abandonment of a unit or place of service is that the first is committed for a specific purpose, namely, to evade military service, while the second may have different goals and prerequisites.
Objective reasons for absence from duty are understood to be:
- serious illness of the employee;
- illness or death of his relatives;
- natural or man-made disasters;
- detention by law enforcement officers, etc.
According to Part 2 of Article 337 of the Criminal Code of the Russian Federation, measures are determined for the same acts of military personnel that are listed in Part 1 of the same article, but if they serve in a disciplinary military unit (units where military personnel are placed, violating the norms of the Criminal Code of the Russian Federation).
According to Part 3 of Article 337 of the Criminal Code of the Russian Federation, penalties are imposed for:
- unauthorized abandonment of a unit or place of service;
- failure to appear for service on time from 10 to 31 days, if the act was committed by a conscript or contract employee in the army.
Part 4 of Article 337 of the Criminal Code of the Russian Federation indicates those measures that are chosen by the court for the acts described in Part 3 of the commented article, but if their period of commission exceeds a month.
The footnote to the article states that if a serviceman in the army committed the acts specified in Article 337 of the Criminal Code of the Russian Federation for reasons beyond his control, then the measures listed in the article may not be applied to him.
These reasons include:
- serious health condition or death of a close relative;
- family circumstances that cannot tolerate delay in action (fire in a house or apartment);
- natural disasters;
- hazing on the part of fellow soldiers (for example, when a soldier in the army is beaten by others, and therefore he decides to leave the unit);
- financial difficulties, etc.
This is an incomplete list, since such reasons mean those that, although they do not interfere with the performance of military duties, but make it very difficult. They may violate his legal status or humiliate his honor and dignity.
Results
Cases of removal of an employee from work are prescribed in Art.
76 Labor Code of the Russian Federation. Each such removal must be documented: a special act, order and other documents. If the dismissal is found illegal, the employer will be financially liable to the employee. You can find more complete information on the topic in ConsultantPlus. Free trial access to the system for 2 days.
When is it considered an offense?
The offense will be considered completed at the moment when the employee in the army under contract or conscription leaves his place of service or military unit or the period of his legal absence there has expired (the period of vacation or business trip has ended).
Objective and subjective sides
The objective side of the act is the commission of one of the acts listed in Article 337 of the Criminal Code of the Russian Federation.
The subjective side consists of deliberate evasion of one’s service, that is, the citizen is fully aware of the illegality of the offense he is committing, but still allows it.
Also, the offender’s goals include only a temporary reluctance to be at the place of duty and not complete evasion from the performance of his official duties.
Objects and subjects of crimes
The object of the offense is the procedure for serving employees in the army, which is regulated by statutes, Federal Law No. 76 of May 27, 1998, and other legislative acts.
The subjects of the acts are:
- employees in the army who perform official duties upon conscription (soldiers serving on conscription; cadets of military educational institutions before they signed a contract; cadets who were expelled from the above institutions before they signed a contract, etc.) ;
- employees under the age of 27 serving in the army under a contract or discharged earlier than the period specified in this contract, unless they are entitled to premature resignation or dismissal.
What evidence is presented?
The proof is an overdue period of dismissal or business trip. The documents indicate their deadlines, so it is easy to see that the citizen did not show up for duty on time.
In the event of an unauthorized failure to appear at a place of service in the army, the very fact of this failure to appear is recorded , and it is also checked whether the citizen was really obliged to fulfill his official duties during this period of time.
Particular attention is paid to whether the soldier in the army had objective reasons for leaving his unit. To do this, his marital status and the state of his family’s finances are analyzed.
Suspension from work due to refusal to vaccinate against coronavirus
An employee must be suspended from work if he refuses to get vaccinated against coronavirus without medical contraindications, for the entire period of an unfavorable epidemiological situation or until he finally gets vaccinated. Suspension must be provided that the employee is included in the list of persons required to get vaccinated, approved by the decree of the chief sanitary doctor of the region (letter see Rostrud dated July 13, 2021 No. 1811-TZ). Moreover, transferring an employee to remote work is not an alternative to suspension.
You can find regulations on vaccination in your region and see details here.
Find out what documents to prepare for compulsory vaccination of employees in ConsultantPlus. If you do not have access to the K+ system, get a trial demo access. It's free.
See also “New grounds for suspension from work and other changes to labor protection from 2022.”
Note! During the suspension, the anti-vaxxer is not paid or accrued.
Obviously, this fact does not suit the workers. And there are already cases of them going to court to protect their rights.
There is still little judicial practice. For example, Rospotrebnadzor for the Republic of Khakassia reports on the decision of the Abakan City Court, which recognized as legal the suspension from work of a bus driver who refused to be vaccinated against a new coronavirus infection without a good reason. Also, the actions of the employer, who suspended unvaccinated employees from work, were recognized as legal by the Proletarsky District Court of Tula (decision dated September 29, 2021 No. 2-1927/2021). In Tatarstan, workers dissatisfied with the suspension reached the republican Supreme Court (there is no decision yet). That is, in general, on the issue of mandatory vaccination, the courts tend to support employers. And suspensions are canceled, as a rule, due to non-compliance with the procedure and flaws in the design. Therefore, the rules must be strictly followed.
Important! Recommendations from ConsultantPlus The procedure for removing from work a person who has not been vaccinated may be as follows (clause 6 of the Appendix to the Explanations of the Ministry of Labor of Russia, Rospotrebnadzor, clause 3 of Rostrud Letter N 1811-TZ): firstly, the employer needs to record the fact that this employee has not completed vaccinations, for this purpose both a memo from the responsible official and an act drawn up and signed collectively can be drawn up; secondly, it is necessary to issue an order in any form... Get trial access to K+ for free and see the entire algorithm of actions.
And there is no need to overdo it. If you have already reached the required percentage of vaccinated people, do not exclude the rest. In such situations, the court will most likely support the employee. This conclusion is indirectly confirmed, for example, by the decision of the Zadneprovsky District Court of Smolensk dated October 19, 2021 No. 2-1710/2021. In this case, an employee who did not have direct contact with a large circle of people (a mechanic) was suspended, and then, when the vaccination rate was reached, he was returned to work. The court awarded him compensation for lost earnings during his suspension and moral damages in the amount of 3,000 rubles. For more details on this case, see our forum.
You can download samples of a notice of the need to get vaccinated against COVID-19 and an order to remove an anti-vaxxer for free by clicking on the desired image below:
Qualifying signs and features
These include the following:
- unauthorized abandonment of a military unit or place of service by a military personnel;
- the latter was obliged to serve at this time, and he had no objective reasons for not coming to service;
- delays during periods of deployment or dismissal that the serviceman could not explain with valid reasons;
- periods of failure to appear range from 2 to 10 days (according to Parts 1 and 2 of Article 337 of the Criminal Code of the Russian Federation) and from 10 to 31 days (Parts 3 and 4 of the same article).
Sample order for suspension from work
The removal of an employee from work is formalized by an appropriate order from the head of the organization. It should reflect the reasons why the employee is not allowed to work. The order will serve as the basis for the accountant to suspend payroll.
You can download a sample order to remove an employee from work for free on our website using the link below:
In addition to the order, the employee’s explanatory note regarding the refusal to undergo a medical examination, a medical report received by the employee, a memorandum, and others can also confirm the legality of the employer’s actions.
Measures of assigned responsibility
If the offense was classified under Part 1 of Article 337 of the Criminal Code of the Russian Federation, the following types of punishment are imposed:
- arrest for six months;
- detention in a disciplinary military unit for a period of up to a year.
If a crime is determined under Part 2 of Article 337 of the Criminal Code of the Russian Federation, the only measure chosen is imprisonment for up to 2 years.
When qualifying a crime under Part 3 of Article 337, the following punishments are determined:
- restriction on military service for a period of up to 2 years;
- detention in a disciplinary military unit for the same period;
- imprisonment for up to 3 years.
If the offense is determined under Part 4 of Article 337 of the Criminal Code of the Russian Federation, the citizen is imprisoned for a period of up to 5 years.
The specific measure and the period for its execution are chosen by a military court after an investigation has been carried out in the case and all the circumstances of the incident have been taken into account.
In what cases are they not applicable?
From criminal liability under Art. 337 of the Criminal Code of the Russian Federation exempts military personnel who for the first time committed unauthorized abandonment of a military unit or place of service, if the reason for this is difficult life circumstances (the serious condition of a close relative, a natural disaster that befell the family of a serviceman, etc.).
Judicial practice under the article
Let us give a couple of examples from judicial practice under Article 337 of the Criminal Code of the Russian Federation.
Junior Sergeant S., without objective reasons, left the military hospital where he was being treated and did not come to his unit for a whole month. The military commissar pointed out to him the need to return to service, but he did not comply with this requirement.
It is worth explaining here that unauthorized abandonment of a military unit or place of service is considered abandonment of any place on the territory of the unit, including a hospital , therefore junior sergeant S. committed a crime by leaving the hospital without a good reason.
The actions of sailor B. were determined by the military court of the Fokinsky garrison under Part 4 of Article 337 of the Criminal Code of the Russian Federation, since he left his military unit for more than a month. During the investigation, it was established that sailor B. left his place of service because after the death of his mother he was left with a little brother and sister and an old grandmother, for whom constant care was needed, and he remained the only breadwinner of the family.
Such circumstances were recognized as valid reasons for leaving service, so all charges against sailor B. were dropped, and he himself was transferred to the reserve.
Removal of an employee from work for medical reasons
A number of professions and positions require an initial and subsequent medical examination. For example, workers in the catering and food industry: salespeople, bartenders, cooks, waiters, support workers and others. Employees of educational institutions are required to undergo a psychiatric commission: kindergarten teachers, teachers of secondary and higher educational institutions, school teachers.
If an employee has not passed the necessary commission and has not received a proper medical certificate allowing him to work, then he may be suspended from work. If, during the next medical examination, he does not receive permission to work, he is also suspended from work until he receives an appropriate positive medical report.
Moreover, if an employee has been recognized as a disabled person of group 1 according to a medical and social examination and is incapacitated for work, then the employer can terminate the employment contract with him. If a disability of group 2 or 3 has not been established, and the person does not want to work anymore, then he can resign of his own free will (Article 80 of the Labor Code of the Russian Federation).
Find out about the procedure for dismissing an employee at your own request from our article “Procedure for dismissing at your own request” .
If the employee wishes to remain at work, the employer is obliged to create working conditions suitable for his further work activity in accordance with the individual rehabilitation program.
