20.01.2023

What kind of desertion happens? Characteristics of the personality of a conscript soldier who deserted

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Introduction

2g Legal analysis of charges for desertion

Conclusion

Glossary

List of sources used

Appendix A

Appendix B

Introduction

Current legislation provides for criminal liability for crimes against military service, which are understood as socially dangerous acts that infringe on the established procedure for military service, committed by military personnel, as well as citizens in the reserve, during military training. The social danger of this kind of criminal acts is also due to the fact that they occupy a significant place in the structure of military crime. Moreover, in recent years there has been a qualitative change in the nature of this type of crime: increasingly, such illegal acts are associated with other crimes - violent actions against colleagues and commanders, murders, theft of firearms and ammunition, robbery, etc. All this further increases the social danger of the crimes in question. criminal offenses and determines the need to study them in order to develop effective preventive measures. It should be noted that this type of crime has a high latency.

As the main feature uniting crimes against the order of stay on military service, in the scientific literature the goal is indicated - the reluctance of the subject to remain in military service and fulfill the duties arising from it.

Thus, the purpose of the course work is to analyze criminal liability for desertion.

To study this goal in detail, we identify the following tasks to cover the topic:

Explore the formation and development of criminal legislation on liability for evasion of military service;

To characterize some problems of the theory and practice of the subjective side in crimes against military service;

Consider the motive for crimes and the socio-economic reasons for desertion;

Analyze the Features of qualification and differentiation of the crimes of unauthorized abandonment of a unit or place of service (Article 337 of the Criminal Code of the Russian Federation) and desertion (Article 338 of the Criminal Code of the Russian Federation) in the Criminal Code of the Russian Federation.

The object of this work is social relations that develop in connection with the 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.

The subject of the study is represented by criminal law and means of influencing the social relations in question from the position of increasing their effectiveness in the fight against desertion and unauthorized abandonment of a unit or place of service.

The structure of the course work. The work consists of an introduction, two main chapters, a conclusion, a glossary, a list of sources used and applications.

desertion criminal liability

1. Historical aspects of the regulation of criminal liability for desertion

1.1 Formation and development of criminal legislation on liability for evasion of military service

The purpose of the army has always been and is to protect the integrity and sovereignty of the state and the order existing in it. At the same time, military personnel would never be able to complete the tasks assigned to them if each of them acted at their own discretion. The strength of the army lies in unity of command. The principle of unity of command gives commanders (superiors) the power to give orders and demand their execution, and obliges subordinates to carry out such orders.

Military criminal legislation has as its task the protection of the combat capability and combat readiness of the Armed Forces, other troops, military formations and bodies in order to ensure Russian military security. Federation, the identity of military personnel, their rights and freedoms, military discipline and the entire procedure for military service from criminal attacks. To carry out this task, it determines which attacks on the procedure for performing military service constitute military crimes, establishes punishments that can be applied to persons guilty of committing them. By protecting public relations in the field of military activities of the state from criminal attacks, military criminal legislation has a regulatory impact on the order of military relations, contributes to the prevention of crimes, and the education of military personnel in the spirit of strict adherence to the Constitution Russian Federation, laws and military regulations, conscientious performance of military duty, respect for the norms of universal morality.

So, let’s turn to history and examine the stages of development of criminal legislation on liability for evasion of military service from October 1917 to the present.

After the victory in the Civil War, the young Soviet state faced the problem of its defense. To accomplish this task, special attention was paid to the creation of new Armed Forces, which in terms of their performance would be far superior to the enemy armies.

The stages of construction of the Armed Forces of the Soviet State and the tasks they solved in connection with this to ensure the combat readiness of troops contributed to the formation of new military criminal legislation. The history of military criminal legislation after 1917 is inextricably linked with the emergence and construction of the Soviet Armed Forces. At all stages of the formation and development of the armed forces great importance was given to maintaining the appropriate order of military service, which was greatly facilitated by the establishment of criminal liability for socially dangerous violations of this order.

Legislation on the liability of military personnel for committing military crimes during the Civil War was mainly limited to regulating liability for evasion of military service.

From the first days of the creation of the Workers' and Peasants' Red Army, the legislator paid attention to the fight against evasion of military service, especially desertion. During the years of foreign military intervention and the Civil War, a number of decrees were issued to combat desertion, in which this crime was considered one of the most serious and shameful.

December 27, 1918 The Workers' and Peasants' Defense Council adopted a resolution "On the fight against desertion." Considering desertion “one of the most serious and shameful crimes,” the resolution demanded that “all the energy of state power be devoted to combating it.” Punishment for desertion ranged from monetary deductions (triple the amount of maintenance during absence) to execution. Those who harbored deserters were punished by being sent to forced labor for up to five years.

The resolution of the Central Commission for Combating Desertion dated February 18, 1919 established that a deserter is “any serviceman who has been absent from his unit for more than seven days.”

On March 3, 1919, the Council of Workers' and Peasants' Defense adopted a decree “On measures to combat desertion,” which paid special attention to the responsibilities of organizations Soviet Republic on strict supervision of employees of these institutions to serve military service.

On June 20, 1919, the Council of Workers' and Peasants' Defense adopted a resolution “On measures to eradicate desertion,” which emphasized the danger of this crime and provided for severe punishment of deserters (up to and including execution), as well as the possibility of applying to those guilty confiscation of all or part of their property and deprivation of for the term or forever of the land allotment.

Thus, during the period of the Civil War and foreign military intervention, the Soviet state issued regulations regulating the responsibility of military personnel leaving their units.

On February 5, 1921, the All-Russian Central Executive Committee and the Council of People's Commissars (hereinafter referred to as the Council of People's Commissars) adopted a decree "On the fight against desertion", providing for the consideration of cases of deserters and their accomplices by people's courts, with the exception of cases of desertion committed under aggravating circumstances, namely:

Desertion in a combat situation;

Desertion of command, administrative and commissar personnel;

Desertion aggravated by participation in armed gangs (banditry);

Concealment, aiding and abetting desertion on the part of responsible officials;

Participation in gangs that produce and distribute false military documents.

By the resolution of the fourth session of the All-Russian Central Executive Committee of the 9th convocation in 1922, a new edition of the articles was given, providing for liability for evasion of military service. The resolution generally increased liability for escape, and unauthorized absence was subject to disciplinary punishment. Part 2 of Article 206 was also introduced, which provided for liability for evasion of military service by the listed methods, “committed in wartime or in a combat situation.”

These changes boiled down to a significant reduction in the duration of absence - up to two hours; repeated unauthorized absence (less than two hours) became criminal; a new element of unauthorized absence was introduced, formulated as unauthorized abandonment of a unit or place of service, lasting for a certain time (from two to twenty four hours), liability for unauthorized absences has been increased; the previously used concept of “escape” was replaced by the concept of “desertion.” At the same time, the content of the crime covered by this concept changed: desertion began to be understood as unauthorized abandonment of a unit or place of service, if it lasted more than one day. The intention of a person to evade the duties of military service for a long time or completely has ceased to be a qualifying sign of desertion.

During the Great Patriotic War, the legislation on the liability of military personnel for evading military service was not subject to changes, since it met the objectives of combating these crimes.

The Criminal Code of the Russian Federation of 1996 provides for liability for crimes against the rules of military service in Articles 337-339 (unauthorized abandonment of a unit or place of service, desertion and evasion of military service duties by feigning illness or other means), which according to their contents are somewhat different from the contents of the corresponding articles of the former Criminal Code of the RSFSR.

An analysis of the development of criminal legislation on liability for unauthorized abandonment of a unit or place of service allows us to formulate a number of conclusions:

From the first days of the creation of the Workers' and Peasants' Red Army, the legislator paid great attention to the fight against evasion of military service, especially desertion.

The adoption of the Criminal Code of the RSFSR in 1922 was important stage in the development of legislation providing for the liability of military personnel for evading military service. In this code, for the first time, a clear definition of three specific crimes was given in law: a) escape (Article 204); b) unauthorized absence; c) evasion of a military serviceman from performing military service or from participating in hostilities by causing himself any damage or through other deception (simulating deafness, dumbness, blindness, mental illness, etc.) (Article 206).

For the first time, the concept of “self-mutilation” was introduced, which allows one word to denote the evasion of a military serviceman from the duties of military service by causing harm to his health.

1.2 The subjective side of crimes against military service: some problems of theory and practice

Strengthening law and order in the Russian army is one of the most important tasks facing the state at the present time.

Only under such conditions can it be possible to ensure compliance with military discipline and, as a consequence, the combat readiness and defense capability of the country. At the same time, the solution to this problem should be carried out in several directions, among which the improvement of the current legislation on conscription and military service, as well as the practice of its application, is of great importance.

One of the central places in the system of measures to ensure military discipline is occupied by the norms of criminal law, especially the provisions of Chapter 33 of the Criminal Code of the Russian Federation, which provides for liability for crimes against military service. It is worth agreeing with V.V. Luneev, who believes that “the social harmfulness of crimes in this area is associated not only with the violation of public order characteristic of criminal acts of ordinary citizens, but also with the weakening of military discipline as the most important component of the combat readiness of military units and connections." This idea, in fact, is a development of provisions expressed at the beginning of the 20th century. N.I. Faleev: “By protecting military law and order through punishment, the state at the same time protects the norm of law and order - military discipline.”

Thus, we can speak with confidence about the special role of criminal law in strengthening the rule of law in the field of military service in general and military discipline in particular, in connection with which the issues of theory and practice of applying the norms of Chapter 33 of the Criminal Code of the Russian Federation deserve increased attention. The scale of this work does not allow us to cover the entire range of problems arising in the field of enforcement of these legal provisions, so we will focus only on the subjective side of crimes against military service.

In accordance with Art. 5 of the Criminal Code of the Russian Federation “a person is subject to criminal liability only for those socially dangerous actions (inaction) and socially dangerous consequences that have occurred for which his guilt has been established.” This provision is constantly reflected in clarifications Supreme Court RF, which systematically points out the need to establish in each specific case the type of guilt, motives, goals, emotional states, as well as evidence on the basis of which the court came to the conclusion that certain circumstances did or did not take place in reality. This attitude of the legislator and the highest court to the signs of the subjective side is not accidental: being an independent element crimes, they “serve as one of the grounds for criminal liability, significantly influence the public danger and, consequently, the legal assessment of the offense, act as factors for distinguishing various crimes in the process of their qualification, and influence the individualization of responsibility and punishment.” The above fully applies to crimes against military service.

One of the controversial issues of military criminal law is the question of the form of guilt in those crimes provided for in articles of Chapter 33 of the Criminal Code of the Russian Federation, in which Parts 1 and Part 2 do not contain an indication of a possible form of guilt, and Part 3 refers to negligence . This picture is observed, for example, in Art. 332 of the Criminal Code of the Russian Federation “Failure to execute an order.”

According to A.V. Sapsay, “the acts provided for in Parts 1 and 2 of Art. 332, are committed intentionally, with direct or indirect intent. At the same time, the attitude of the culprit to the consequences of failure to comply with an order may also be characterized by negligence. A crime classified under Part 3 of Art. 332, is committed through negligence, it is the result of the perpetrator’s careless or dishonest attitude towards service.”

In turn, O.K. Zatelepin, referring to the provisions of Part 2 of Art. 24 of the Criminal Code of the Russian Federation, offers the following solution: in Part 1 of Art. 332 of the Criminal Code of the Russian Federation, guilt can be either intentional or careless, and in Part 2 of this article - only intentional, since otherwise there would be no difference between it and Part 3.

In this case, there is a certain contrast between Part 3 of the article in question (failure to execute an order due to a careless or dishonest attitude towards service, resulting in grave consequences) and Parts 1, 2, which refer to a subordinate’s failure to comply with a superior’s order given in the prescribed manner, which caused significant harm interests of the service (Part 1) and the same act committed by a group of persons, a group of persons by prior conspiracy or organized group, as well as causing grave consequences (Part 2). The contrast is seen in the legislator’s use of the epithets “careless, dishonest”: according to the meaning of the law, it turns out that in the first two cases we are talking about a deliberate failure to comply with the order. If you turn to Russian language dictionaries, you can find the following interpretation: specified terms: “careless - careless, treating one’s duties or work without due care”, “unscrupulous - done poorly, carelessly, without sufficient diligence.” Based on this understanding, it can be assumed that in Part 3 of Art. 332 of the Criminal Code of the Russian Federation describes situations in which military personnel, without specifically intending not to carry out the order given to them in the prescribed manner, nevertheless do not carry out the task assigned to them due to an irresponsible attitude towards their duties and military duty. Moreover, according to this part of Art. 332 of the Criminal Code of the Russian Federation should qualify situations when military personnel began to actually carry out actions that were the content of the received order, but as a result of negligence did not achieve the desired result. In any case, in these situations we can only talk about a careless form of guilt in relation to the failure to comply with the order itself, and even more so in relation to the consequences that occurred.

In turn, in parts 1 and 2 we are talking about cases of deliberate non-fulfillment of an order given, which can be expressed in obvious, demonstrative inaction, as well as disguised as the fulfillment of a given order, without the goal of actually executing it (creating the appearance of work). Therefore, we believe that it is necessary to talk here only about the intentional form of guilt in relation to the fact of failure to comply with the order and about any form of guilt in relation to the consequences.

I would also like to draw attention to the purpose of military crimes. In many articles of Chapter 33 of the Criminal Code of the Russian Federation it is not indicated as a constructive feature of certain crimes. However, its establishment is the responsibility of the preliminary investigation authorities and the court in each criminal case of a military crime. This is due to the fact that it affects the qualifications of the crime. For many intentional crimes against military service, it is necessary to check whether the act was committed for the purpose of providing assistance foreign country, a foreign organization or their representatives in carrying out hostile activities to the detriment of the external security of Russia, and if it is established - to qualify the act under Art. 275 of the Criminal Code of the Russian Federation (high treason).

In addition, the target can play the role of a delimiting feature, allowing one military crime to be distinguished from another. So, for example, desertion (Article 338), according to all objective signs, may coincide with the elements of unauthorized abandonment of a unit (Appendix A). Therefore, the only criterion for distinguishing them from each other is the goal - for desertion it is traditionally defined as the intention to evade military service altogether.

In addition to these theoretical problems of determining the signs of the subjective side of crimes against military service, I would like to draw attention to a number of problematic issues that arise in the practical activities of preliminary investigation bodies and courts in this category of crimes.

1. Unreasonable qualification of the actions of a convicted person as a military crime in the absence of real intent to commit one

Thus, by the verdict of the Krasnoyarsk Garrison Military Court of August 5, 2011, Pr. convicted of committing crimes under Part 3 of Art. 337 and part 1 of Art. 338 of the Criminal Code of the Russian Federation, using Part 3 of Art. 69 of the Criminal Code of the Russian Federation.

The court of first instance established two periods of evasion Pr. from military service: from December 30, 2009 to January 21, 2010 (temporary) and from March 25, 2010 to April 25, 2011 (with the intention not to begin military duties at all).

During the cassation hearing, the district military court, based on the circumstances established by the case materials, indicated that the second period of evasion was reasonably imputed to the convicted person, which is confirmed by relevant evidence.

At the same time, the case materials contain an order from the investigator dated December 30, 2009, in pursuance of which Pr. arrived on the same day at Krasnoyarsk City Clinical Hospital No. 6, from where he was immediately sent to another medical institution - the Berezovskaya Central District Hospital, where he underwent examination and treatment. For inpatient treatment Pr. He was admitted to the hospital only on January 21, 2010, after free beds became available.

According to subparagraph “h” of paragraph 1 of Art. 37 of the Federal Law “On Military Duty and Military Service”, a serviceman is considered to be performing military service if he is undergoing treatment, traveling to the place of treatment and back.

Thus, during the period from December 30, 2009 to January 21, 2010, Pr. did not shirk military service, but complied with the investigator’s instructions to undergo examination and treatment.

These circumstances are confirmed by relevant extracts from the outpatient medical record, the testimony of the attending physician, as well as a certificate and discharge summary available in the case file.

It appears that under such circumstances, in the actions of Pr. there was no intention to leave the place of service without permission during the specified period. Therefore, we consider it justified that the West Siberian District Military Court overturned the above verdict in the relevant part and terminated the criminal case.

2. Absence in the verdict of a description of the elements of a crime (in particular, intent), failure to provide evidence of their presence

So, in the case it was established that Al. On March 12-13, 2010, in the evening, in a secluded place in the barracks of the unit, for the purpose of personal enrichment, threatening to beat him, he demanded from a colleague Dr. in the near future give him 1500 rubles. for your own needs.

Subsequently, for the same purpose, using violence, as well as threats of violence, he demanded that the victim give him parts of the specified amount of money.

Al's actions qualified by the court under paragraph “c” of Part 2 of Art. 163 of the Criminal Code of the Russian Federation and part 1 of Art. 335 of the Criminal Code of the Russian Federation.

Meanwhile, from the case materials it was clear that the convict’s intent was aimed only at confiscating someone else’s property. Whether his actions contained intent to violate the statutory rules of relations between military personnel has not been established by the case materials.

In turn, within the meaning of Art. 335 of the Criminal Code of the Russian Federation, the use of physical violence by one military serviceman to another can be recognized as a violation of the statutory rules of relations between military personnel in the absence of a relationship of subordination between them only if it is used in connection with the performance of duties by the victim in military service, or in the performance of at least one of these duties or when the use of violence, although not directly related to the performance of military service duties, was associated with an obvious violation of the order of military relations for the perpetrator and expressed clear disrespect for the military collective.

Considering that the case materials do not contain any evidence of the commission of Al. of the said act for the reasons described above, we find absolutely justified the decision of the Presidium of the East Siberian District Military Court to exclude Part 1 of Art. 335 of the Criminal Code of the Russian Federation.

3. Incorrect identification of the purpose of the crime

Thus, by the verdict of the Barnaul Garrison Military Court, P. was convicted under Art. 338 part 1 of the Criminal Code of the Russian Federation. He committed desertion in the period from January 25, 2007 to January 29, 2009.

Meanwhile, an analysis of the case materials casts doubt on whether the perpetrator has a goal to completely evade the duties of military service, which is a mandatory sign of desertion.

As was seen from the testimony of the convicted person himself, witnesses B., Chr. and S., P. in October 2006, in accordance with the established procedure, submitted a report on early dismissal from military service for personal reasons, and according to it, the command initiated the issue of such dismissal.

Having illegally been absent from service since January 25, 2007, P., according to his explanations, was awaiting a decision on the issue of his dismissal, living in a place known to the command of the unit, as evidenced by the fact that officer Chr. in April 2007 I found him. At the same time, P., at the suggestion of Chr. completed a number of documents necessary for early dismissal from military service due to non-compliance with the terms of the contract on his part, while signing a sheet of conversation about the upcoming dismissal.

The voluntariness of P.’s entry into military service under a contract also implies the possibility of early dismissal of this person on the grounds established in the Federal Law “On Military Duty and Military Service.”

Having raised such a question with the command before the start of evasion of military service, and then illegally removing himself from the sphere of military legal relations, P. counted on the positive decision expected for himself, which indicates the intention of the culprit only to temporarily evade military service.

As the West Siberian District Military Court rightly noted in its ruling, “... under such circumstances, the convict’s assertion that he repeatedly initiated the process of his dismissal from military service, each time supported by the command of the unit, was not refuted by the evidence examined at the court hearing.”

In connection with the above, we believe that the cassation court reasonably came to the conclusion that P.’s evasion from military service was initially of a temporary nature, and rightly reclassified the offense as part 1 of Art. 338 of the Criminal Code of the Russian Federation at Part 4 of Art. 337 of the Criminal Code of the Russian Federation.

An opposite example is the case of Private M., examined by the Chita Garrison Military Court, who was convicted of committing a crime under Part 4 of Art. 337 of the Criminal Code of the Russian Federation.

The preliminary investigation authorities accused M. of desertion. At the same time, M.’s accusation was based on the circumstances of his long-term evasion of military service - over 3 years, as well as the fact that he hid his affiliation with the army, worked in temporary jobs and had no goal of continuing military service.

However, as the court found, M., for the purpose of temporarily evading military service, on March 29, 2006, voluntarily left his unit and went to his parents’ place of residence in the city<...>, where he began to spend time at his own discretion. On June 10, 2009, M. contacted the investigative department of the Chita garrison and declared himself.

Considering these actions of M. as unauthorized abandonment of a unit lasting more than one month and reclassifying them under Part 4 of Art. 337 of the Criminal Code of the Russian Federation with Part 1 of Art. 338 of the Criminal Code of the Russian Federation, the court referred to M.’s consistent testimony that he wanted to take a temporary break from military service. At the same time, the court came to the conclusion that the absence of intent to desert was evidenced by the objective behavior of the defendant, who during the period of illegal stay outside the military unit lived at the place of residence of his parents, did not hide and did not try to legalize his position, voluntarily appeared before the investigative authorities and declared About Me. In addition, according to the court, this was evidenced by the testimony of witnesses from among M.’s relatives, who explained that M., in the period from April 2006 to June 2009, constantly expressed his intention to contact the military prosecutor’s office in order to understand the issue of military service .

The qualification of M.'s actions as unauthorized abandonment of a unit lasting more than one month in this case raises certain doubts. Obviously, in order to correctly assess the crime, it was necessary to study in detail the goals and motives of the perpetrator’s actions. First of all, the accused himself had to be interrogated in detail on this matter, after which his testimony had to be carefully checked and compared with other evidence. But as an analysis of the case materials shows, the court, when making a verdict, was based only on the testimony of the defendant.

Meanwhile, the court had to analyze in totality all of M.’s criminal behavior during three years of evasion: his attitude towards military service, facts of inaction and failure to take measures to stop his criminal actions to evade military service, the fact of his employment during the specified period, duration staying outside the unit.

4. Use of incorrect wording when describing the signs of the subjective side of crimes against military service

As an analysis of the materials of criminal cases on crimes provided for in Chapter 33 of the Criminal Code of the Russian Federation shows, preliminary investigation bodies and courts do not always provide correct formulations of those elements of a crime that are constructive. Thus, we came across the following descriptions of the purposes of the crimes provided for in Art. 337 and 338 of the Criminal Code of the Russian Federation: “for the purpose of taking a break from military service”, “for the purpose of taking a break from performing the duties of military service”, “wishing to take a break from military service”, “trying to avoid the obligation to perform military service”, “with the intention of stopping the performance of duties military service”, etc.

It seems that all of these options speak about the motive of these crimes, but not about the goal. Therefore, we consider fair the comments made by district military courts about the need to indicate in sentences the goal of temporarily evading military service (for Article 337 of the Criminal Code of the Russian Federation), and in cases of desertion - with the goal of completely evading military service.

To summarize, I would like to note that these problems of the subjective side of crimes against military service, of course, are not exhausted - they are much more extensive and multifaceted.

Therefore, we consider it necessary to continue research into all complex issues related to the qualification of this group of crimes, because ultimately this will have a positive impact on the state of legality in the ranks of the Armed Forces of the Russian Federation and will ensure the defense capability of Russia.

2. Legal analysis of charges for desertion

2.1 Motive for crimes and socio-economic reasons for desertion (Article 338 of the Criminal Code of the Russian Federation)

This crime is defined in the law 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 purpose, committed by a military serviceman undergoing military service upon conscription (Article 338 of the Criminal Code of the Russian Federation).

The objective side of desertion is expressed in the unauthorized abandonment of a military unit or place of service by a serviceman, or in his failure to appear at the unit (for service) from vacation, business trip, or medical institution. Desertion is a continuing crime with a formal structure and is considered completed from the moment the serviceman leaves the unit or leaves his place of service, or from the moment he fails to return within the prescribed period from vacation, a business trip, or a medical institution. However, the criminal state of the deserter continues as long as he has the obligation to perform military service, assigned to him by the Constitution of the Russian Federation (Article 59) and the Law of the Russian Federation on military duty, according to which male citizens are subject to conscription for active military service aged from 18 to 27 years. Upon reaching the age of 27, they are exempt from conscription. Based on this, desertion as a continuing crime actually ceases from the moment the person is released from the obligation to perform active military service. Other grounds for terminating the criminal state of a deserter are surrender or detention by the authorities.

The subjective side of desertion is characterized only by direct intent and a special purpose - to evade military service.

The subjects of the crime are military personnel undergoing military service upon conscription.

The qualified type of this crime is provided for in Part 2 of Art. 338 of the Criminal Code of the Russian Federation. The law establishes stricter liability for 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. The Criminal Code of the RSFSR of 1960 did not provide for these signs. According to the current Criminal Code of the Russian Federation, if a serviceman deserted with a weapon entrusted with his service, his actions are fully covered by Part 2 of Art. 338 of the Criminal Code of the Russian Federation. Only in the case of the theft of a weapon not entrusted to him, responsibility arises for the totality of crimes. The concept of desertion committed by a group of persons by prior conspiracy is revealed on the basis of the provisions of Part 2 of Art. 35, and by an organized group - the provisions of Part 3 of the same article of this Code.

Article 338 of the Criminal Code of the Russian Federation has a note: a serviceman who has committed desertion for the first time, as provided for in Part 1 of this article, may be released from criminal liability if he voluntarily surrendered or the desertion was a consequence of a combination of difficult circumstances. Difficult circumstances can be recognized as: the death or serious illness of one of the parents or close relatives, a natural disaster or the destruction of a home, family, etc. by fire, requiring the serviceman to be with the victims to provide assistance to them.

2.2 Features of the qualification and differentiation of the crimes of unauthorized abandonment of a unit or place of service (Article 337 of the Criminal Code of the Russian Federation) and desertion (Article 338 of the Criminal Code of the Russian Federation) in the Criminal Code of the Russian Federation

A citizen who is called up or entered military service in the Armed Forces of the Russian Federation, other troops, military formations and bodies, is obliged to perform military service for a specified period in a particular military unit to which he is sent by the relevant command, and at any time be ready to perform of his military duty. Most military personnel strictly adhere to the established procedure for military service and conscientiously perform their military duty. However, individual military personnel violate this order by evading the duties of military service by unauthorized leaving a military unit or place of service, desertion, self-harm, feigning illness, forgery of documents, etc.

Various types of evasion from military service pose a serious public danger.

By committing such crimes, military personnel violate either certain requirements of the procedure for military service (for example, to be at the location of a military unit, to return to the unit from a business trip or vacation within a specified period, to serve in the place and as part of the military unit where this is determined by the relevant command , etc.), or in general the obligation to perform military service (for example, in case of desertion). These offenses weaken the combat effectiveness of a unit, unit, ship, and negatively affect the state of combat readiness of troops and naval forces. In addition, these offenses make it difficult to staff the army and navy with the personnel necessary to successfully carry out the tasks assigned to them.

The social danger of the types of evasion from military service provided for by the Criminal Code of the Russian Federation also lies in their negative impact on other morally unstable, undisciplined military personnel. In addition, they often create the basis for the commission of other ordinary and military crimes (crimes against the person, theft, hooliganism, violations of the statutory rules for performing special services, etc.) or are accompanied by them.

Various types of evasion from military service occupy a significant place in the structure of crimes committed in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, and are among the most common crimes against military service.

Thus, in the structure of crimes against military service, unauthorized abandonment of a unit or place of service takes second place after violation of the statutory rules of relations between military personnel in the absence of subordination relations between them (Article 335 of the Criminal Code of the Russian Federation). At the same time, the number of other crimes against military service, including desertion, is an order of magnitude lower. It is interesting that the qualification of the act in 94.5% of investigated criminal cases on the facts of unauthorized abandonment of military service and in 93.2% of the investigated criminal cases on the facts of desertion is characterized by the presence of aggravating circumstances. This indicates the high public danger of these types of crimes at the present time, the fight against which has been and remains one of the urgent tasks of the command, the army and navy public, as well as military justice authorities. The above highlights the need to improve criminal law provisions providing for liability for crimes against military service.

The elements of unauthorized abandonment of a unit or place of service (Article 337 of the Criminal Code of the Russian Federation) (Appendix B) and desertion (Article 338 of the Criminal Code of the Russian Federation) are related: the difference lies in the signs of the subjective side, the most difficult to prove, so their differentiation is of interest both from a theoretical point of view , and from a practical point of view.

The Plenum of the Supreme Court of the Russian Federation in its resolution of April 3, 2008 No. 3 “On the practice of courts considering criminal cases of evasion of conscription for military service and military or alternative civil service” explained that “when delimiting the crimes provided for in Articles 337 and 338 of the Criminal Code of the Russian Federation, the courts must proceed from the fact that liability under Article 337 of the Criminal Code of the Russian Federation occurs only if the person has the intention to temporarily evade the duties of military service and, after a certain period of time, return to the unit (place of service) for military service. In case of desertion (Article 338 of the Criminal Code of the Russian Federation), a person has the goal of completely avoiding the duties of military service. If such a goal appeared in a serviceman after leaving his unit (place of service) without permission, the act should be qualified only as desertion.

Intent to desert may be evidenced by such circumstances as the acquisition or production by a person of false identification documents or evidence that the citizen has served the statutory period of military service or has a deferment from conscription, employment, etc.”

The study of data on the motive and purpose of committing a crime makes it possible to correctly qualify the crime, identify the causes and conditions conducive to its commission, and predict the behavior of a serviceman both during the period of evasion from military service and during the investigation. In this regard, it seems important to trace the evolution of the motivational sphere of military personnel evading military service.

Thus, the main motives for committing this act in the 1960s. there was a desire to take a break from military service and spend time idle (53% of cases), the desire to visit relatives was manifested in 17% of cases. In the 1970s these motives were noted in 26% of cases, and the main motive was an unfavorable situation in the family, which manifested itself in 27% of cases.

In the 1980-1990s. the predominant motives of military personnel to evade the duties of military service were the wrong actions of superiors in relation to subordinates (52%), and the above motives amounted to only 9%.

Currently, among the main motives for evading military service, scientists put forward the following: the desire to take a break from service and spend time idly - 45%, the desire to visit relatives - 16.7%, family problems - 14.5%, intolerance of the hardships and deprivations of service - 5.6%, ignorance of the law - 5.6%, fear of responsibility for a disciplinary offense - 4.2%, desire to avoid hazing between military personnel - 2.8%, reluctance to serve in the Armed Forces - 2.8%, improper performance command of their duties - 1.4%, poor relationships with command - 1.4%. Thus, there is a return of the motivational sphere to the state characteristic of the 1960s, which indicates problems of a cultural and educational nature, shortcomings in ensuring that military personnel receive emotional release and physical rest after performing official duties.

It is important to note that for temporary departures from military service, characteristic motives are the desire to visit relatives and acquaintances, resolve family and personal matters, satisfy various temporary intentions (spend time idle, meet a woman, drink alcohol). Typical motives for desertion include: reluctance to endure the hardships and deprivations of military service or to serve in a certain branch of the military, the desire to solve personal and family problems of a permanent nature and to avoid criminal liability for crimes committed during service. However, this difference is not always taken into account when investigating crimes of this type. The study revealed certain difficulties associated with proving the purpose of evading military service. For example, in 9% of the criminal cases studied, the validity of the classification of the crime is questionable. All of these crimes were qualified under Art. 337 of the Criminal Code of the Russian Federation, however, the study of the circumstances of the commission of the crime gives every reason to believe that the servicemen left military units in order to completely evade further service. Moreover, in 41% of cases, the actions of military personnel contained signs directly indicating this - the production of false identification documents, employment, and in other cases the period of evasion ranged from 5 to 9 years. However, during the investigation of criminal cases, the motivational sphere was studied little, and information about the motives for committing a crime was not used to refute statements by military personnel that they had no intention of leaving military service forever.

Thus, on September 17, 2007, serviceman A. M. Aliev, in order to take a temporary break from military service, did not show up for duty on time without good reason. During the period of illegal stay outside the military unit, he lived in Moscow, spending his time at his own discretion, working on the restoration of buildings and as a driver. On September 30, 2010, Aliyev was detained by police officers.

The Moscow Garrison Military Court found A. M. Aliev guilty of committing a crime under Part 4 of Art. 337 of the Criminal Code of the Russian Federation, i.e. unauthorized abandonment of a unit or place of service for a duration of more than one month.

It seems that in this case, the duration of leaving the military unit and getting a job indicated that Aliyev had intent to evade military service. Thus, his act constitutes a crime under Art. 338 of the Criminal Code of the Russian Federation, i.e. desertion.

A similar decision was made by the 235th Garrison Military Court of Moscow, which found soldier Private Zaitsev guilty of committing a crime under Part 4 of Art. 337 of the Criminal Code of the Russian Federation. Before the morning formation on February 20, 2002, Zaitsev, in order to temporarily take a break from serving and evade his duties, voluntarily left military unit 18938. While outside the unit, Zaitsev took a break from service, lived with casual acquaintances and spent time at his own discretion. At 2:45 a.m. on February 27, 2011, in the village of Kryukovo, Chekhovsky district, Moscow region, he was detained by police officers.

Since Zaitsev, being a conscript soldier, was absent from the military unit without permission for more than one month, the court qualified what he had done under Part 4 of Art. 337 of the Criminal Code of the Russian Federation.

Nevertheless, leaving the military unit for a long period of time (more than 9 years) convincingly indicates that Zaitsev had a goal of evading military service. This is also confirmed by the fact that the crime was ended not due to the appearance of the culprit at the military unit, but due to the suppression of his criminal act by police officers. Consequently, the act contains signs of a crime under Art. 338 of the Criminal Code of the Russian Federation.

A similar opinion has already been expressed in the legal literature - a long unauthorized absence from a unit is one of the factors that, together with other circumstances, can serve as evidence of the desire of the culprit to desert.

The period of unauthorized absence of a serviceman from a unit (at his place of duty) can be considered as a criterion for delimiting the elements of crimes provided for in Part 4 of Art. 337 and art. 338 of the Criminal Code of the Russian Federation. We believe that, taking into account the currently established period of conscription military service, which is equal to one year, the unauthorized absence of a serviceman from a unit or place of service for a duration of more than one year can be chosen as such a criterion. We believe that the specified time period indicates the serviceman’s persistent reluctance to perform the duties of military service and the presence of a goal to completely evade its completion.

Taking into account the above, it seems appropriate to supplement the note to Art. 337 of the Criminal Code of the Russian Federation with the following paragraph: “An act provided for in Part 4 of this article, lasting more than one year, is subject to qualification under Part 1 of Article 338 of this Code.” At the same time, in the current version of Art. 337 of the Criminal Code of the Russian Federation, the word “Note” should be replaced with the word “Notes”, the text contained in the note should be considered paragraph 1 of the notes, and the text of the note we propose should be considered paragraph 2 of the notes.

Such an addition to the Criminal Code of the Russian Federation will make it possible to legislatively solve the problem of distinguishing between desertion and long-term unauthorized abandonment of a military unit, and therefore, achieve maximum objectivity in the classification of these crimes.

Conclusion

Voluntary fulfillment of the duties of military service and the established procedure for military service is the duty of every serviceman. Violation of this duty under certain conditions may constitute a criminal act. Thus, according to Article 331 of the Criminal Code, crimes against military service are recognized as crimes against the established procedure for military service provided for in this chapter, committed by military personnel undergoing military service through conscription or under contract in the Armed Forces of the Russian Federation, other troops and military formations of the Russian Federation, as well as citizens in reserve during their military training.

Due to its specificity, this group of crimes was singled out by the legislator as an independent chapter, thereby forming a system of crimes against military service.

The generic object of the crimes included by the legislator in Title XI is social relations regulating military service. At the same time, within a generic object, all military crimes can be combined according to their specific object, that is, by a specific type general order service.

The direct objects of crimes against military service are social relations that form individual elements of the procedure for performing and performing military service.

Thus, at the legislative level, a classification of crimes against military service has been carried out. It should be noted that in all sciences that are, in one way or another, related to the consideration and description of existing facts, classification is used in order to systematize them.

Classification is one of the most common techniques legal technology, which allows many studied phenomena to be combined into single classification groups in accordance with certain rules of construction. This technique serves as the basis for all types of scientific classifications, including a complex procedure for establishing a cause-and-effect relationship that connects classified objects.

Thus, by the time the 1996 Criminal Code of the Russian Federation came into force, criminal liability of military personnel of the Armed Forces, other troops, military formations and bodies of the Russian Federation for evasion of military service arose under Art. 245-249 of the Criminal Code of the RSFSR of 1960, which reproduced the relevant norms of the USSR Law “On Criminal Liability”.

In connection with the adoption of the Criminal Code of the Russian Federation in 1996, a number of crimes against the rules of military service were decriminalized, in particular, unauthorized absence, and criminal penalties for unauthorized abandonment of a unit or place of service were significantly softened.

Thus, the formation and development of criminal legislation for evasion of military service has a complex historical nature. At all stages of the formation and development of the Armed Forces, great importance was attached to maintaining the appropriate procedure for military service, which was greatly facilitated by the establishment of criminal liability for socially dangerous violations of the procedure for military service.

Glossary

		Definition

		a type of criminal punishment imposed by a court verdict and consisting of keeping the convicted person in conditions of strict isolation from society for a period of one to six months.
		represents a person’s internal attitude towards his behavior and its consequences.
	Desertion	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.
		action or inaction prohibited by criminal law.
	Qualification of the crime	establishment and legal consolidation of the exact correspondence between the signs of the committed act and the signs of the crime provided for by the criminal law.
	Deprivation of liberty	consists of isolating the convicted person from society by sending him to a penal colony or placing him in an educational colony, a medical correctional institution, a general, strict or special regime correctional colony, or in prison.
	Object of the crime	This is a set of social relations protected by criminal law, which are targeted by a criminal attack that causes or creates a threat of causing harm to them.
	Objective side of the crime	a set of external signs of criminal behavior that constitute a socially dangerous, unlawful act, which is committed at a certain time, in a specific place, in a certain way, with the help of specific tools or means and in a certain environment, and as a result of which socially dangerous consequences occur (or a threat arises such consequences). ...

Article 338. Desertion

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, -
shall be punished by imprisonment for a term of three 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.

Comm. V.V.Luneev

1. Criminal liability for desertion has changed. For the first time, the Criminal Code provides for group desertion, desertion with weapons and exemption from criminal liability under certain circumstances.
2. Desertion, as before, is understood as unauthorized abandonment of a unit or place of service, as well as failure to appear for service in order to evade military service, i.e. for the purpose of evading the fulfillment of a constitutional obligation, and not individual duties of military service.
3. proclaims the defense of the Fatherland to be the duty and responsibility of citizens of the Russian Federation, who bear it in accordance with federal laws.
4. Federal laws “On Defense” (Article 12), “On Military Duty and Military Service” (Section V) and “On the Status of Military Personnel” (Article 1) determine that the recruitment of the Armed Forces of the Russian Federation is carried out on a voluntary basis - under a contract and on the basis of conscription for military service on an extraterritorial basis.
5. The contract is concluded by agreement of the parties: the citizen and the military department, but on the condition that the person voluntarily entering military service meets the requirements for military personnel. According to current legislation, contracts are concluded by officers, warrant officers, midshipmen, and military cadets educational institutions vocational education(this does not include the Suvorov and Nakhimov schools, which provide general education), sergeants, foremen, soldiers and sailors.
By concluding a contract, a serviceman enters into military-administrative relations and assumes the obligation to perform military service in accordance with current legislation. He is also subject to criminal liability for committing a crime against military service, unless otherwise specified in the law, as, for example, in Part 1 of Article 337 of the Criminal Code.
The Law “On Military Duty and Military Service” does not provide for the right of a “contractor” to terminate a contract on his own initiative before the expiration of the term. Such termination is possible only when concluding a new type of contract. For example, the first contract was concluded for 3 years, and he, having terminated it, enters into a new type of contract - for 5 or 10 years.
A soldier serving under a contract, like a soldier serving on conscription, has the right to early dismissal from military service, but in strictly defined cases, including in accordance with the conclusion of a military medical commission on grounds of limited suitability.
Therefore, desertion by a person performing military service under a contract is a criminal offense.
6. According to the previous legislation, the desertion of a serviceman with a weapon was classified as a combination of crimes - desertion and theft of firearms.
According to current legislation, desertion with weapons entrusted in service forms a single qualified composition (), since weapons are issued to a military personnel legally.
Desertion with weapons that the serviceman was not entrusted with during his service is qualified by the combination of elements as desertion and theft of weapons.
7. For the concepts of a group of persons by prior conspiracy or an organized group, see

1. Circumstances of desertion. 5

1.1 History of desertion and responsibility for its commission. 5

1.2 Characteristics of the personality of a conscript soldier who committed desertion. 8

2. Features of desertion as a crime against military service 13

2.1 Criminal-legal characteristics of desertion. 13

2.2 Criminal liability for desertion. 19

Conclusion. 27

Bibliographic list of references.. 30

Introduction

Traditionally, desertion is understood as unauthorized abandonment of military service, and 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.

In the ordinary mind, deserters are considered to be all military personnel who left their units without permission. Soldiers flee the armed forces almost every day. Almost all cases of soldiers escaping from the army occur for two reasons: because of humiliation and beatings from fellow soldiers and because of the half-starved existence that young people are forced to endure in their units.

However, in accordance with the Criminal Code, only those who illegally left their unit with the firm intention of never returning to military service can be called a deserter. If, during the investigation, a detained deserter states that he ever intended to “return to duty” (by the way, it is very difficult to prove the opposite), that leaving the unit was the only way for a soldier to escape from “hazing,” then the legal term “deserter” will apply to him it will no longer be possible to apply it, he is exempt from criminal liability. In such situations, military lawyers use a broader term: unauthorized abandonment of a unit.

However, it is naive to think that all deserters are innocent and unfortunate victims of “hazing” who themselves are not able to even touch a fly with their finger. Almost a third of military personnel who left their units without permission commit some kind of crime “in freedom” - robberies, sometimes even murders. Moreover, the intellectual and moral potential of conscripts in recent years leaves much to be desired.

Therefore, there has already been a division of escapes of military personnel into criminal ones, aggravated by criminal offenses, and non-criminal ones, when a young man thus tries to achieve protection and justice. Every year, the military prosecutor's office of Russia sends to court about 2-2.5 thousand criminal cases on charges of desertion.

In 1998, an amnesty was declared for citizens who evaded military service. At the same time, about 12 thousand people confessed. Moreover, sometimes people who deserted from the army back in 1984 applied.

Since October 2, 2006 The Main Military Prosecutor's Office (GVP) resumed the practice that had already been used in 1998-1999 - the "Reveal" and "Fugitive" actions - and, according to the prosecutor's office, showed their effectiveness. According to the Main Military Prosecutor's Office, in the last two years alone, more than three and a half thousand military personnel who had previously left their units without permission turned to them. Of these, 1,269 people were released from criminal liability.

The relevance of the topic of the course work lies in the fact that desertion is the most dangerous crime against the order of military service, since a citizen completely evades military service.

Desertion is associated with the evasion of citizens from fulfilling their constitutional duty - the defense of the Fatherland. The social danger of desertion lies in the fact that it encroaches not only on the order of service, but also on the constitutional foundations of the state.

The main goal of the course work is to study the problem of desertion and criminal liability for this type of military crime.

In accordance with this goal, the following tasks were set in the course work:

Consider the history of the problem under study.

Characterize the personality of a conscript soldier who deserted.

Implement a criminal legal description of desertion.

Expand criminal liability for desertion.

1. Circumstances of desertion

1.1 History of desertion and responsibility for its commission

Desertion is a phenomenon of military life that runs throughout history. The reasons for it are different in different eras, but they have always been common: the desire to avoid danger at the time of battle, difficult conditions of service, an undeveloped sense of duty, oppression from superiors and other persons, etc.

With the transition to regular armies, the establishment and development of military discipline, and 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, and periodically declared amnesties, and huge financial rewards. rewards for informers, etc. Only in the 19th century. the adoption of improved recruitment systems, the reduction of 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 to 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 paraded them in this form for 3 days. retail space; Not a single girl could marry a fugitive Spartan, as a dishonest man. In Rome, escape was punishable by death and confiscation of property. The ancient Germans hung deserters from a tree as traitors, but sometimes limited themselves to cutting off the nose, ears, tongue or gouging out the eyes.

In Russia during the Moscow period, all those evading government service were generally called “netchiks,” and failure to appear for service was no different from escaping from service, at least in wartime.

Certain punishments for evading military service until the middle of the 17th century. did not have; punishments were imposed by separate decrees, depending on the degree of danger threatening the state, failures during the war, etc. Cathedral Code 1649 made a distinction between failure to appear for service under the pretext of old age, injury or illness, escape from service in peacetime, escape from the battlefield and escape by going over to the enemy. The Code did not define punishment for failure to appear, but ordered that those fit for service simply be sent to the regiments. Subsequent decrees usually imposed criminal penalties.

On the extent of evasion from military service in the 17th century. They give the following figures: on the first Crimean campaign, Prince. Golitsyn, there were 1386 city nobles and boyar children who showed up in the wrong places; from General Gordon's regiment, 105 people fled during the campaign from Moscow to Akhtyrka, that is, almost 1/8. During the reign of Peter, constant wars, long campaigns, indefinite service, strict discipline, difficult and unusual front-line training increased evasion of service in all forms. Not daring to return home, the fugitives hid in the forests, formed gangs and committed terrible robberies and robberies. Hence the cruelty and persistence with which Peter fought against escaping from service. “Deserters and fugitives” in the articles of 1716 were treated in a special chapter (XII); Dozens of separate decrees were devoted to the same subject. In relation to infiltrators, Peter’s main measure was the reward of informers, sometimes determined in the amount of half of the infiltrator’s property, sometimes in the amount of his entire movable and immovable estate.

The military criminal law of the Russian Empire understood escape from military service as unauthorized abandonment of a place of service with the intention of leaving military service altogether. Any military serviceman can be the subject of an escape, regardless of whether he is in compulsory or voluntary service.

The punishability of escape from service in the current law is made dependent on a number of conditions. The law, first of all, defines various grounds for the punishability of officers and lower ranks, then sets up 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 were: in peacetime - “exclusion from service,” “resignation,” or detention in a guardhouse; in the military - “exclusion from service” with deprivation of ranks. Punishments were provided for the lower ranks: for the 1st escape - military prison, for the 2nd - a disciplinary battalion, for the 3rd - deprivation of all status rights and exile to Siberia for a settlement. In wartime, the same punishments were imposed, and the court could increase them by 1 or 2 degrees. With voluntary appearance, the punishment could be reduced by 1 or 2 degrees.

Circumstances that increased guilt were considered to be: taking away government clothing (exceeding what was necessary), ammunition, ammunition and weapons, taking away a government horse, being on the run for more than 6 months, escaping from custody and crossing the border.

The time spent on the run for lower ranks in conscript service is excluded from the service period. The force 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. 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, in addition to escaping from service, they are not accused of other crimes.

[Criminal Code of the Russian Federation] [Chapter 33] ✍ Read the comment to the article

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.

Legal advice under Art. 338 of the Criminal Code of the Russian Federation

Georgy Yanoshin

Is it possible to leave the regional military registration and enlistment office? they may be allowed to go home or there is an opportunity to leave without permission

Lawyer's answer:
If you are already sent to a collection point, then they are released from there quite rarely. Well, it’s better not to remember about unauthorized departure, because here Art. 328 CC. And if unauthorized departure occurs after the assignment of a rank, that is, after the legal start of military service, then Art. Art. 337-338 of the Criminal Code, which is much more serious than 328.

Nikita Abalakin

Do they have the right to imprison a contract soldier if he has gone home and does not go to work? or in practice they simply fire? What do they actually do in practice? Do they fire you or put you on trial?

Lawyer's answer:
In practice, if a criminal case is initiated under Art. 337 or 338 of the Criminal Code of the Russian Federation, everything can end in a guilty verdict. The court will decide whether the punishment is real or conditional. Taking into account the seriousness of the situation, I recommend that you immediately seek help from a lawyer and then report to the military prosecutor’s office or military unit.

Inna Golubeva

Problem in criminal law. Help is needed. Private Sh. of the Armed Forces of the Russian Federation, not wanting to continue his service, deserted from his post with the weapon entrusted to him. After 2 weeks of wandering, having come to his senses, Sh. returned to his military unit and voluntarily surrendered his weapons and ammunition. Is there a voluntary refusal to commit a crime in Sh.’s actions? Read Art. 338, 339 of the Criminal Code of the Russian Federation.

Lawyer's answer:
according to part 2 of Art. 338 of the Criminal Code of the Russian Federation he will be tried, part 2 is a qualifying feature of the crime. However, it is worth noting that this crime has a formal element, so the fact that he returned and surrendered voluntarily will play a role in court only as a mitigating circumstance (at the discretion of the court). There is no refusal to commit a crime here.

Svetlana Fedotova

An example of a continuing crime?

Olga Soboleva

Served 1 year out of 3 under contract. Left the unit with the permission of com. part and due to circumstances did not return.

you're an idiot? go back to part What is the connection between these three sentences? Or does the contract imply complete freedom of action according to circumstances? new??? only if the old one is lost, but this is not about you - you have violations...

Mikhail Svinogonov

In 1998, he left his military unit without permission, and a criminal case was initiated under Art. 337 p 4. Now 32 years old, when will the persecution stop? What is the best thing to do in this case? We should get legalized.

There is no statute of limitations for desertion.

Vera Gromova

Military commissariat... I passed a medical examination and no abnormalities were found, in general I am fit. After the inspection, I was told to appear at the military commissariat, whether I should go there or just ignore the summons.

Tamara Fomina

Can a criminal case be brought against an officer for absence from work?

Lawyer's answer:
When I was an investigator at the military prosecutor's office (1997-2007), I completed several such criminal cases. This is Art. Art. 337-338 of the Criminal Code of the Russian Federation. These articles apply not only to conscripts, but also to contract military personnel (of course, to officers). The initiator of the initiation of such cases is the commanders of the military units. Such situations are rare and you still need to try to get the unit commander out. The main feature of this crime is the constant absence of a serviceman from the place of military service (without valid reasons) for more than 10 days, or an open refusal to perform military service. This should not be confused with truancy. A military serviceman is a special subject in law and the labor code does not apply to him

Eduard Gonchar

soooo...so this unfortunate downtrodden Glukhov also turns out to be a conscript???.oh, what discoveries then...and what about conscripts already?

So he is not only a conscript who is serving abroad, but also who took part in the war. But they said that only contract soldiers fight. And according to his statements, he arrived in South Ossetia in June and dug trenches long before August 8th. Oh how all this...

Petr Semenko

What is the sentence for desertion in wartime?

Polina Molchanova

What is the probability that a guy will be killed in the army? Well, or will they make him disabled there? Good evening everyone, my friend had a tense situation in the Russian Federation in 2009, he joined the Russian army in 2010, like after 2 or 3 months he left the army without taking the oath, now he decided to go to them himself in 2010, when he left the army he wrote on they had a lot of complaints, thereby angering the military; he has a civilian wife and a small child; the investigator seemed to tell him that the criminal case would be closed since he had a confluence of difficult circumstances; his health was in danger in the army

Lawyer's answer:
They won’t take you back into the army. If the criminal case is closed, they may send you back to serve in the same unit. And it all depends on how much he angered the military with his complaints. He can’t expect a sweet life, but it’s unlikely that it will come to murder or disability. Officers don’t do this, their colleagues have long since retired, but now it’s green compared to your comrade. So he will behave quietly and peacefully - the rest of the service will go well.

Natalia Petrova

what happens if a contractor leaves his service without permission?

They'll put you on the lip. Read the article. Art. 337, 338 of the Criminal Code of the Russian Federation! the usual punishment for violating the terms of the contract... fines. Strange question! There will be a turma, however, since His Majesty the Criminal Code will come into force, Article 337, 338, depending on...

Alena Nikolaeva

My friend went AWOL for a week. What will happen to him? My comrade went AWOL himself, without anyone’s help, he caught a car near the unit and drove home, what will happen to the conscript soldier himself and the person who stopped and gave him a lift? The soldier was dressed in civilian clothes.

The one who gave the ride is in no danger.

Natalia Petrova

after how many days: absenteeism and desertion in the army

in the SA it seems that if more than 2 days / conscript / - a deserter, but then they served for 2 years and now they serve for 1 year, which means it is logical to assume that a deserter after 1 day of absenteeism)))

Polina Golubeva

I wrote a report on dismissal before the expiration of the probationary period and stopped attending service, can I be imprisoned?

Vladimir Vesnin

lost a labor dispute in the district court, but there is a desire to go to victory. Where to go?. Please tell me where and what papers to submit and how to prepare them?

Cassation to the Moscow City Court within 10 days. In the complaint, justify why the court of 1st instance, in your opinion, made the wrong decision, give arguments

Alena Lebedeva

They took away what was assigned. I turned 18 years old, passed the second medical examination, after passing they were told to hand over the registration and come back on May 28, I presented a deferment, the question is, for what purpose do I need to visit my comrades again?

the actions of the military registration and enlistment office are not legal, but where are you doing your business? I think this is the reason

Vadim Cheverov

Whether a contract soldier will be imprisoned for unauthorized abandonment of a unit if the probationary period is still underway has not been judged before. did not appear in the unit for 1.5 months

It’s true what they say, no matter how bad things go for you, there will always be someone who has them even worse: D

Stepan Ovsyanikov

Is Georgia facing “Forcing the release of prisoners of war”?

Sergey Protsko

What groups are crimes against military service divided into?

Can’t you open the Criminal Code of the Russian Federation? 1) attacks on the order of subordination, for example, failure to execute an order (Article 332 of the Criminal Code), violent actions against the boss (Article 334 of the Criminal Code), etc.; 2) encroachments on statutory...

Anatoly Nagaitsev

Need help look inside. I signed a contract with a probationary period of 3 months, I served for a week, I didn’t like the part, I wrote a dismissal report, the company commander said I can go home and wait for a call for final dismissal, after 1.5 months they came for me and “very nicely asked” me to go get and withdraw money from the salary card that they made in I refused my absence and went back home, so I realized that my report was postponed until payday and it was not given to anyone to sign, I went to the prosecutor’s office and wrote a statement, they said they would figure it out if the unit could throw out my report and say that I supposedly left the part myself

Lawyer's answer:
Of course they will do so, they will report you to the police and initiate a criminal case. Until the dismissal order is issued, you fall under criminal liability, now, in order to avoid getting caught, you should not give an explanation to the military prosecutor’s office that you were absent from service, by the way, you will soon be called there.

Yulia Vinogradova

help =). I’m 18 years old, I passed the medical examination at the military registration and enlistment office, they told me that I was fit, they gave me a summons, I signed for it, it was written FOR APPEARANCE, I didn’t understand what that meant, I didn’t go, in short, after 1 month, the draft ended on July 15th and there were no summonses, does this mean that I will receive a summons for a new conscription on September 15? and will I get anything for this agenda?

Lawyer's answer:
You may be fined 500 rubles. And then you will undergo a medical examination again. The military registration and enlistment office will not care about the fact that you took photographs; most likely they will send you for additional examination. And there, if you have flat feet of the 2nd degree but, with symptoms of arthrosis, also of the 2nd degree, then you can get category B.

Vera Petrova

Please tell me what it means, Article 385. Cancellation of an acquittal 2. An acquittal pronounced on. Don’t tell me what it means, Article 385. Cancellation of an acquittal 2. An acquittal, rendered on the basis of a jury’s acquittal, can be canceled upon the proposal of the prosecutor or a complaint from the victim or his representative only in the presence of such violations of the criminal procedure law that limited the right the prosecutor, the victim or his representative on the presentation of evidence or influenced the content of the questions posed to the jury and the answers to them. That is, if no one stopped me from providing evidence to the court or no one stopped the judge from correctly formulating questions for the jury, then the acquittal pronounced by the jury cannot be overturned? Thank you.

Lawyer's answer:
For example, if, when the judge formulated the questions to be resolved by the jury, the victim was not given the opportunity to make his proposals to pose new questions to the jury (see commentary to Part 2 of Article 338); the judge unreasonably refused to satisfy the request of the prosecutor or the victim, his representative to study additional (indicated by this party) evidence, etc. 3. The Plenum of the Supreme Court of the Russian Federation in paragraph 24 of the Resolution of March 5, 2004 No. 1 drew the attention of the cassation courts the possibility of overturning an acquittal only in compliance with the requirements provided for in Art. 385 Code of Criminal Procedure<1>. See: Resolution of the Plenum of the Supreme Court of the Russian Federation “On the application by courts of the norms of the Criminal Procedure Code of the Russian Federation” // RG. 2004. March 25.

- Lawyer's answer:
  Svetlana, the latest changes to the Criminal Code of the Russian Federation were introduced by Federal Law No. 26-FZ of March 7, 2011 “On Amendments to the Criminal Code of the Russian Federation” (came into force on March 11, 2011). So, according to the specified Federal Law, changes to the code are made to various articles of the Criminal Code of the Russian Federation, starting from 74 to 338 (see the link in the source for the Federal Law itself with amendments). Therefore, no changes to Art. 69 of the Criminal Code of the Russian Federation was not introduced. The latest changes were made to its 3rd part in the edition. Federal Law of December 8, 2003 N 162-FZ (see the current version below). Article 69. Imposition of punishment for a combination of crimes 3. If at least one of the crimes committed in totality is a grave or especially grave crime, then the final punishment is imposed by partial or complete addition of punishments. In this case, the final punishment in the form of imprisonment cannot exceed more than half the maximum term of punishment in the form of imprisonment provided for the most serious crime committed. (Part three as amended by Federal Law dated December 8, 2003 N 162-FZ)

Boris Samunin

Please see if I solved the problem correctly? Serviceman Voronov, while on short-term leave in the Ulyanovsk region, decided to avoid further service. For this purpose, he faked suicide and moved to one of the cities in the Altai Territory. After some time, Kolosov was detained in Moscow, where he was sent on a business trip. Determine where the crime occurred and the criminal law to be applied. Answer 1. The place where the crime was committed will be the military unit where Voronov served. 2. In this case, Art. 339 of the Criminal Code of the Russian Federation of June 13, 1996

Leonid Krestovozdvizhensky

gentlemen, lawyers, has anyone ever dealt with a jury? What questions can be put on the list for them on the day of the verdict?

Lawyer's answer:
Criminal Procedure Code of the Russian Federation Article 338. Statement of issues to be resolved by the jury 1. The judge, taking into account the results of the judicial investigation and the parties' arguments, formulates in writing the issues to be resolved by the jury, reads them out and transmits them to the parties.2. The parties have the right to express their comments on the content and wording of the questions and make proposals for raising new questions. In this case, the judge does not have the right to refuse the defendant or his defense attorney to raise questions about the existence of factual circumstances in the criminal case that exclude the defendant’s responsibility for what he has done or entail his responsibility for a less serious crime.3. During the discussion and formulation of questions, jurors are removed from the courtroom.4. Taking into account the comments and proposals of the parties, the judge in the deliberation room finally formulates the issues to be resolved by the jury and enters them into the question sheet, which is signed by him.5. The question paper is read out in the presence of the jurors and handed over to the jury foreman. Before leaving for the deliberation room, jurors have the right to receive clarifications from the presiding judge regarding any ambiguities that have arisen in connection with the questions posed, without touching upon the substance of possible answers to these questions. Article 339. Content of questions for jurors 1. For each of the acts committed in which the defendant is accused, three main questions are asked: 1) is it proven that the act took place; 2) is it proven that the defendant committed this act; 3) is the defendant guilty of committing this act. 2. In the question paper, it is also possible to pose one main question about the guilt of the defendant, which is a combination of the questions specified in part one of this article.3. After the main question about the guilt of the defendant, private questions may be raised about such circumstances that affect the degree of guilt or change its nature, entailing the release of the defendant from responsibility. If necessary, questions are also raised separately about the degree to which the criminal intent was carried out, the reasons why the act was not completed, the degree and nature of the complicity of each of the defendants in the commission of the crime. Questions are permissible to establish the defendant’s guilt of committing a less serious crime, if this does not worsen the defendant’s position and does not violate his right to defense. 4. If the defendant is found guilty, the question is raised as to whether he deserves leniency.5. Questions that require jurors to legally qualify the status of the defendant (about his criminal record), as well as other questions that require actual legal assessment when the jurors render their verdict, cannot be raised separately or as part of others.6. The wording of the questions should not allow any answer to them to recognize the defendant as guilty of committing an act for which the state prosecutor did not charge him or did not support the charge at the time the questions were asked.7. Questions to be resolved by the jury are raised in relation to each defendant separately.8. Questions are posed in terms that jurors can understand.

Yuri Kabin

But why should we worship a multi-colored rag, a logo and a song - “symbols of the state”?

Introduction. 2

1. Circumstances of desertion. 5

1.1 History of desertion and responsibility for its commission. 5

1.2 Characteristics of the personality of a conscript soldier who committed desertion. 8

2. Features of desertion as a crime against military service 13

2.1 Criminal-legal characteristics of desertion. 13

2.2 Criminal liability for desertion. 19

Conclusion. 27

Bibliographic list of references.. 30

Introduction

The relevance of the topic of the course work lies in the fact that desertion is the most dangerous crime against the order of military service, since a citizen completely evades military service.

The main goal of the course work is to study the problem of desertion and criminal liability for this type of military crime.

In accordance with this goal, the following tasks were set in the course work:

Consider the history of the problem under study.

Characterize the personality of a conscript soldier who deserted.

Implement a criminal legal description of desertion.

Expand criminal liability for desertion.

1. Circumstances of desertion

1.1 History of desertion and responsibility for its commission

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 3 days on the market square; Not a single girl could marry a fugitive Spartan, as a dishonest man. In Rome, escape was punishable by death and confiscation of property. The ancient Germans hung deserters from a tree as traitors, but sometimes limited themselves to cutting off the nose, ears, tongue or gouging out the eyes.

Certain punishments for evading military service until the middle of the 17th century. did not have; punishments were imposed by separate decrees, depending on the degree of danger threatening the state, failures during the war, etc. The Council Code of 1649 made a distinction between failure to appear for service under the pretext of old age, injury or illness, escape from service in peacetime, and escape from the battlefield and escape and go to the enemy. The Code did not define punishment for failure to appear, but ordered that those fit for service simply be sent to the regiments. Subsequent decrees usually imposed criminal penalties.

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.

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.

1.2 Characteristics of the personality of a conscript soldier who deserted

The problem of the identity of the criminal is one of the most complex in the science of criminology. There are many definitions of the concept of the identity of a criminal. The most common is the following - the personality of a criminal is understood as a set of social and socially significant properties, signs, connections and relationships that characterize a person who guilty of violating the criminal law, and in combination with other (non-personal) conditions and circumstances influencing his antisocial behavior.

At the same time, the personality of a criminal - a military serviceman - is a specific phenomenon that accumulates negative influences that form this type of offender, and includes criminogenic circumstances of the pre-conscription period of his life and specific criminogenic army conditions.

To determine the mechanism for committing a crime and preventing desertion, it is necessary to analyze the complex of these circumstances and identify the most significant of them, which directly determine this type of offense. These determinants are the direct objects of the preventive influence of authorized objects.

As is known, the most significant structural components of a criminal’s personality in the criminogenic aspect are his socio-demographic and moral-psychological characteristics, which determine the content of his criminal behavior. Socio-demographic characteristics include gender, age, education, social and marital status, military status, year and place of service, etc.

A common feature of the Russian Federation is the high criminal activity of young men. This pattern, in relation to conscripts, is decisive. At the same time, this component structure manifests itself more actively, the lower the level of his preparation for service.

As studies have shown, the level of education of this category of offenders is generally lower than the average level of education of the population of this age group. In particular, the level of education of convicted conscript deserters is characterized by the following indicators: incomplete secondary education - 6%; average - 52%; secondary special - 38%; unfinished higher education - 0%; higher education - 4%.

At the same time, the largest number of desertions were committed by military personnel in the first year of service - 54%, in the second - 46%.

It is quite obvious that the socio-demographic characteristics of the offender’s personality characterize only its objective, external component.

The internal content of a personality consists, as is known, of its social guidelines, needs, interests, habits and other socially significant characteristics that underlie the motivation for unlawful behavior. In relation to the object of our study, the most significant of these characteristics are: attitude towards military service, military duty, law and order, colleagues and oneself. The core of the internal structure of the mechanism of unlawful behavior is its motivational component, which predetermines the choice of the appropriate type of behavior in conjunction with the corresponding life situation, which in our case acts as a criminogenic one. General characteristics In this sphere of personality of the studied category of offenders, there is a clear predominance of the needs of material and biological properties, in comparison with the law-abiding part of colleagues. The majority do not have stable socially positive connections and relationships. When analyzing the motivational sphere of the studied category of criminals, it was established that there were significant shifts in this property, which directly determine offending behavior.

The problem of borderline psychophysiological states that do not exclude sanity, for example, mental retardation, deserves special attention. The existing system of recruiting troops does not allow us to fully ensure the elimination of persons with anomalies of this type from conscription. This condition directly determines a certain type of delinquent behavior; in particular, as the study showed, they are prone to unauthorized abandonment and desertion.

For the criminological study of criminals and the development of individual preventive measures, the method of their classification and typology is used. The most common classification grounds are, as is known, the depth and persistence of antisocial personal deformation, its consistency, manifested in illegal behavior and “gravitation” to a certain type, etc. The most promising is the classification of the previously designated category of offenders in accordance with such a classification basis as the degree of psychological stability of the individual in connection with the criminal legal characteristics of the committed acts.

The following types of criminals can be distinguished from this category of offenders:

1) random - who committed desertion for the first time, but was previously characterized positively;

2) situationally unstable - who committed desertion for the first time, but previously committed offenses and disciplinary offenses and committed a crime under the influence of unfavorable circumstances;

3) malicious - who committed desertion due to persistent antisocial views and attitudes, and has previously been repeatedly prosecuted.

The above classification, although quite conditional, allows for a differentiated approach to different categories of military personnel when organizing individual preventive work, including in preventing desertion.

In general, military personnel who committed desertion are characterized as persons who are dominated by such traits as poverty of spiritual needs and interests, distortion of legal consciousness and inability to assess the nature of the illegal actions they commit and their consequences. In addition, they are typically characterized by a distortion of value guidelines, when the most significant are not the intellectual characteristics of the individual, but the strength and ability to stand up for oneself.

Thus, it is necessary to highlight the most criminogenic characteristics of the personality of a deserter soldier. In particular, these are:

2. Features of desertion as a crime against military service

2.1 Criminal and legal characteristics of desertion

Defense of the Fatherland is the duty and responsibility of a citizen of the Russian Federation. In accordance with the Constitution of the Russian Federation, citizens are obliged to perform military or alternative service in the manner prescribed by law.

However, the legislator, in order to ensure that citizens fulfill their constitutional duty, provided for liability, including criminal liability, for evasion of military service.

Evasion of the duties of military service can have a different nature, but the most serious and dangerous is evasion of the constitutional duties of citizens to protect the Fatherland through desertion, since in this case the culprit has the goal of completely evading military service.

Article 338 “Desertion” of the Criminal Code of the Russian Federation was placed by the legislator in section. XI “Crimes against military service”, thereby the generic object of this crime is defined as social relations that ensure the normal procedure for military service by military personnel, i.e. fulfillment of the constitutional duty of a citizen of the Russian Federation to protect the Fatherland.

The immediate object of desertion is the established procedure for being in military service. Desertion is understood as the 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, i.e. for the purpose of evading the fulfillment of a constitutional obligation, and not individual duties of military service.

In this case, the territory of a military unit is understood as the location of barracks, tents, and other premises where military personnel permanently or temporarily reside and serve, as well as a place of service outside the military unit where the serviceman is currently performing service duties (place of temporary work, echelon , route, train, etc.).

Thus, the objective side of this crime is expressed either in action - leaving a military unit or place of service, or in inaction - failure to appear at the unit or place of service upon appointment, transfer, from a business trip, from a medical institution, from dismissal, etc.

The moment of termination of stay outside the territory of a military unit or other place of service is recognized as the time when the offender’s stay outside of service was terminated (the offender’s surrender; return to the unit; detention by his employees law enforcement or military departments, etc.).

In turn, a crime is considered completed not from the moment the criminal act ceases, but from the moment it begins, i.e. When guilty person left the unit or other place of service without permission, or failed to report for duty on time.

Here there is an existing contradiction to the law; if a crime is considered completed at its beginning, practically at the moment of leaving the military unit, then it cannot possibly continue.

As a result of the existing contradiction, in practice problems arise with the qualification of desertion, as well as with the application of certain provisions of the general part of the Criminal Code (the validity of the law in time, the limitation of criminal liability, etc.).

Also, if desertion is a continuing crime, therefore, it is unfinished, then it must be subject to the requirements of Chapter VI of the Criminal Code of the Russian Federation - “Unfinished Crimes”, including Article 31 of the Criminal Code - “voluntary refusal to commit a crime.” According to the disposition of the article, voluntary refusal is recognized as “... a person’s cessation of preparation for a crime or cessation of actions...”. “Also, if desertion is a continuing crime, therefore, it is unfinished, then it must be subject to the requirements of Chapter VI of the Criminal Code of the Republic of Uzbekistan - “Unfinished Crimes,” including Article 26 of the Criminal Code - “voluntary renunciation of committing a crime.” According to the disposition Article voluntary refusal is recognized - “... a person’s cessation of preparatory actions or the cessation of a crime...”

Consequently, the voluntary termination by the perpetrator of ongoing desertion by returning to service should be considered a voluntary refusal.

There is another problem, for example, what are the limits of ongoing desertion? After reaching the age of 27, in accordance with Article 22 of the Law “On Military Duty and Military Service,” citizens of the Russian Federation are exempt from conscription for military service. But they carry out military service up to 28.5 years (from January 1, 2008 - up to 28 years). Consequently, desertion loses its criminal character once the perpetrator reaches this age.

Therefore, for military personnel undergoing conscription military service, desertion as a continuing crime should be recognized as completed (terminated) not from the point of view of the crime, but from the point of view of the duration of the desertion process of 27 years, i.e. from the moment when the obligation to perform military service by conscription ceases.

At the same time, the grounds for considering desertion as completed in duration include not only the age limit (limit) for conscription for compulsory military service, but also the occurrence of the conditions provided for in Article 23 of the Law “On Military Duty and Military Service,” which are the basis for exemption from conscription for compulsory military service and from service in the mobilization conscription reserve.

For example: serviceman M. left a military unit for the purpose of desertion at the age of 18.5 years. During the period of desertion, when he was 22 years old, he fell ill with an illness that gave him the right, with commission medical confirmation, to be exempt from conscription. From this moment on, the crime must be considered completed in terms of duration, although M. continues to hide. “At the same time, the grounds for considering desertion as completed in duration include not only the age limit (limit) of conscription for compulsory military service, but also the occurrence of the conditions provided for in Article 22 of the Law of the Republic of Uzbekistan “On General Military Duty and Military Service”3, which are the basis for exemption from conscription for compulsory military service and from service in the mobilization conscription reserve. For example: serviceman M. left a military unit for the purpose of desertion at the age of 18.5. During the period of desertion, when he turned 22, he fell ill with a disease entitling him to upon commission medical confirmation, for exemption from conscription. From this moment on, the crime must be considered completed in duration, although M. continues to hide."

Or, during the period when M. was in a state of desertion, when he turned 22, one of his close (brother, sister) relatives was killed or died in connection with military service, which gives M. the right to be exempt from conscription. From this moment on, the ongoing crime must also be considered completed, although M. continues to hide.

To determine the moment of completion of the crime, i.e. terminating the duration of desertion of guilty persons undergoing military service under a contract must be approached in a differentiated manner. “To determine the moment when the commission of a crime ends, i.e. the end of the duration of desertion of guilty persons undergoing military service under a contract, it is necessary to take a differentiated approach.”

In accordance with Article 38 of the Law “On Military Duty and Military Service,” the initial contract for service in the positions of privates and sergeants is concluded for a period of three years, for officer positions - for five years. “In accordance with Article 7 of the Law of the Republic of Uzbekistan “On General Military Duty and Military Service”4, the initial contract for service in the positions of privates and sergeants is concluded for a period of three years, for officer positions - for five years.”

Contracts are concluded with cadets of higher military educational institutions for the duration of their studies with the condition that they subsequently undergo mandatory military service as officers for at least five years. “Contracts are concluded with cadets of higher military educational institutions for the duration of their studies with the condition that they subsequently undergo mandatory military service as officers for at least five years.”

By concluding a contract, a serviceman enters into military-administrative relations and assumes the obligation to perform military service in accordance with current legislation. He is also subject to criminal liability for committing a crime against military service, unless otherwise specified in the law.

Therefore, when determining the moment of termination of the duration of desertion, it is necessary to take into account the originality of the contract. If desertion is committed within the framework of the original contract, the expiration dates will be the expiration dates of the contracts according to the status of privates, sergeants, and officers. “Therefore, when determining the moment of termination of the duration of desertion, it is necessary to take into account the originality of the contract. If desertion was committed within the framework of the original contract, the termination dates will be the expiration dates of the contracts according to the status of privates, sergeants, and officers.”

Article 49 of the Law “On Military Duty and Military Service” establishes the age limits for military service according to the categories of military personnel. In accordance with them, it is necessary to determine the end (cessation) of the duration of desertion. “Article 26 of the Law of the Republic of Uzbekistan “On General Military Duty and Military Service” establishes the age limits for military service according to categories of military personnel. In accordance with them, it is necessary to determine the end (termination) of the duration of desertion.”

Determining the moment when the commission of a crime ends is necessary not for exemption from criminal liability, but to determine, in accordance with Article 9 of the Criminal Code of the Russian Federation, the validity of laws in time, as well as to determine the time when Article 78 of the Criminal Code, which regulates the statute of limitations for prosecution, begins to operate.

In addition, this is important for the application of legal acts, such as amnesty, etc., which can only be applied after the completion of a continuing crime.

One of the ways to stop the duration of the desertion process is, for example, the fact of detaining the culprit. It is necessary to make clarifications here. In particular, if the culprit is detained in connection with desertion, one can agree with this formulation of the question. If the culprit is detained for another crime and does not inform the investigating authorities that he is a deserter, then such detention does not stop the process of ongoing desertion. Even after serving his sentence for the crime for which he was detained, he remains a deserter and there is no mitigation of punishment legal acts, for example, amnesties issued during this period do not apply to him.

At the same time, it is necessary to distinguish between the legal consequences of surrender and voluntary refusal of desertion. “At the same time, it is necessary to distinguish the legal consequences of surrender from voluntary refusal of desertion. “In case of surrender, the actions of the perpetrator remain desertion and he is liable under Article 338 of the Criminal Code. “If he turns himself in, the actions of the culprit remain desertion, and he is liable under Article 288 of the Criminal Code of the Republic of Uzbekistan.”

With a voluntary refusal of desertion, the guilty person not only confesses to the crime committed and surrenders himself to justice, the main thing is that he consciously refuses desertion and expresses a desire to fulfill his constitutional duty to perform military service. “With a voluntary refusal of desertion, the guilty person does not simply appear with guilty of the crime committed and surrenders himself to justice, the main thing is that he consciously refuses desertion and expresses a desire to fulfill his constitutional duty to perform military service."

In these cases, despite the fact that desertion is a completed crime from the moment of leaving a military unit, nevertheless, its actions must be reclassified according to the actual consequences, for example, under Article 337 of the Criminal Code (unauthorized abandonment of a unit).

2.2 Criminal liability for desertion

Desertion is a crime against military service and entails criminal liability in accordance with Article 338 of the Criminal Code of the Russian Federation.

Desertion as a military crime is characterized by characteristics common to all crimes: public danger, criminal wrongfulness, guilt and punishability. At the same time, the specificity of military service fills these characteristics with a special “military” content.

The public danger of crimes against military service lies in causing harm to military security or creating a threat of causing such harm. Criminal harm to the military security of the state is mediated by causing, in one form or another, damage to the combat readiness of troops.

Corpus delicti. This is the system established by law mandatory objective and subjective elements, the signs of which characterize a socially dangerous encroachment by a serviceman (a citizen in the reserve during military training) on the military security of the state as a crime against military service.

The concept of a crime against military service, and desertion in particular, includes elements common to all crimes: object, subject, objective and subjective sides. The totality of the legal characteristics of a military crime forms its social danger and emphasizes the specific features that make it possible to distinguish military crimes from similar ordinary criminal ones.

The presence of a crime against military service in a socially dangerous act committed in accordance with Article 8 of the Criminal Code of the Russian Federation is the basis for criminal liability. This is the main significance of the military crime.

Only by discovering in the act of a serviceman (a citizen in the reserve during military training) the presence of all the signs of a crime against military service, we can talk about bringing him to criminal liability under the corresponding article of Chapter 33 of the Criminal Code of the Russian Federation.

Another meaning of the crime against military service is its use to qualify the crime, i.e. to establish and consolidate in procedural documents the correspondence between the legal signs of a real socially dangerous act and the signs with the help of which the legislator constructed the composition of this military crime in the criminal law norm. The process of qualifying crimes against military service includes qualification according to individual elements of the crime.

The corpus delicti does not depend on the period of unauthorized abandonment of a unit or place of service or failure to appear for service on time, if the goal in the case is established to completely evade military service, and is completed from the moment of leaving the unit, place of service or failure to appear for service.

The object of desertion as a crime against military service is military security protected by criminal law from criminal attacks, which is a state of combat readiness of the military organization of the state, guaranteeing armed protection of the constitutional order, independence, sovereignty and territorial integrity of the Russian Federation from external and internal military threats.

The objective side of desertion is an external act of a socially dangerous encroachment on an object protected by criminal law - military security. The objective side of desertion is characterized by characteristics common to all crimes: the act, the consequence, the causal relationship between the act and the resulting consequence, the method, place, time, setting, means and instruments of committing the crime. A distinctive feature of the signs of the objective side of desertion is the specificity of their content, due to the military object of the attack.

In military crimes, the subject belongs to the special category, i.e. possessing along with common features- sanity and age - special. These include, first of all, the presence of the person at the time of the commission of the crime in military service or military training.

The subject of desertion is a military serviceman undergoing military service under conscription or contract. Persons performing military service under a contract are criminally liable for leaving their unit or place of service without permission and for failure to appear at the unit or place of service; They are also subject to criminal liability for desertion. This is the generally accepted view.

The subject of desertion may be a person serving a sentence in a disciplinary military unit or in the form of arrest and detention in a guardhouse. A person serving a sentence in the form of restrictions on military service is also held accountable for desertion.

Citizens in the reserves are also responsible for desertion during military training, since in accordance with Article 2 of the Federal Law “On the Status of Military Personnel”, citizens of the Russian Federation undergoing military training are subject to the status of military personnel in cases and manner , which are provided for by the legislation of the Russian Federation.

The subjective side of desertion consists of direct intent for the purpose of evading military service. A specific element of the subjective side of desertion, which serves as the only criterion for distinguishing it from unauthorized abandonment of a unit or place of service, is the purpose of the crime. Thus, unauthorized abandonment of a unit or place of service is desertion only if there is a purpose of evading military service.

Part 2 of Article 338 of the Criminal Code of the Russian Federation provides for qualifying signs of desertion. One of these signs is desertion with weapons entrusted to the service. This weapon must be a service weapon. If the weapon is stolen by the culprit, then the crime is qualified as desertion without aggravating circumstances and theft of weapons under Article 226 and Part 1 of Article 238 of the Criminal Code. If a deserter transfers, sells, stores, sends or carries weapons, ammunition, then he is responsible under Article 222 of the Criminal Code for the illegal acquisition, transfer, sale, storage, transportation or carrying of weapons.

Another qualifying feature is desertion committed by a group of persons by prior conspiracy or by an organized group. When analyzing desertion by prior conspiracy by a group of persons, one should be guided by Part 2 of Article 35 of the Criminal Code, and in case of desertion committed by a group - Part 3 of this article.

The weapon referred to in Part 2 of Article 338 of the Criminal Code must be a service weapon.

The public danger of desertion with weapons, the commission of this crime by several persons and especially by those who have weapons, is extremely great.

On April 14, 1999, Alexander K. and Denis P. deserted from one of the military units stationed in Gyumri. They stole two Kalashnikov assault rifles and six horns with cartridges from the weapons room. The search team found them at the bazaar. While resisting arrest, deserters killed two civilians and wounded seven.

The act is subject to qualification under Part 2 of Article 338 of the Criminal Code (qualifying characteristic - desertion committed by a group of persons), Part 3 of Article 226 of the Criminal Code (qualifying characteristic - theft of firearms by a group of persons), paragraphs "a", "d" "Article 105 of the Criminal Code (qualifying feature - murder of two persons and commission of this crime in a generally dangerous way).

As with unauthorized abandonment of a military unit or place of service, desertion can be combined with a violation of the rules of combat duty (Article 340 of the Criminal Code), violation of the rules of the border service (Article 341 of the Criminal Code), violation of the rules of guard duty (Article 342 of the Criminal Code), violation rules for performing service to protect public order and ensure public safety (Article 343 of the Criminal Code) and violation of the statutory rules for performing internal service (Article 344 of the Criminal Code).

In such cases, the act is qualified under Part 1 or Part 2 of Article 338 of the Criminal Code and the corresponding article establishing liability for violating the procedure for performing special types of service. In case of aggregation of crimes, exemption from criminal liability in accordance with the note to Article 338 of the Criminal Code is not applicable.

State Duma deputies propose toughening penalties for crimes against military service, in particular, punishing deserters with imprisonment for up to 15 years. Such amendments to the Criminal Code were proposed by a group of deputies from the Defense Committee. One of the authors is United Russia committee member Nikolai Bezborodov, who Soviet time led party-political work in the troops, said in an interview with the Krasnaya Zvezda newspaper that before the new year the bill would be submitted to the Duma for consideration. The document proposes to increase the punishment for unauthorized abandonment of a unit to 5 years in prison, for desertion in peacetime - up to 7 years, and for desertion in wartime - up to 15 years. It is also proposed to introduce criminal liability for evading conscription for military service in wartime or combat situations. This will result in a prison sentence of 3 to 7 years. Now the Criminal Code makes no mention of wartime at all.

The note to Article 338 of the Criminal Code states that a serviceman who has committed an act for the first time under Part 1 of this article may be exempt from criminal liability if desertion was the result of a combination of difficult circumstances. It must be emphasized that the law talks about the possibility of exempting from criminal liability military personnel who have committed unqualified desertion (unauthorized abandonment of a unit or failure to appear for the first time). This provision of the law should also be extended to military personnel who have committed a more serious crime - desertion, which follows from a comparative analysis of Article 337 and Article 338 of the Criminal Code.

The content of the concept of “difficult circumstances” is not disclosed in the law. Difficult circumstances can be recognized as such life situations that, although in themselves, are not an absolute obstacle to military service, but significantly complicate its performance and necessitate the immediate presence of a person at the place of residence of relatives, acquaintances, etc.

These, in particular, should include the existence of grounds for granting military personnel leave for personal reasons, provided for in paragraph 10 of Article 11 of the Federal Law of May 27, 1998 N 76-FZ “On the status of military personnel.”

These include a serious health condition or the death (death) of a close relative of a serviceman (spouse, father (mother), father (mother) of a spouse, son (daughter), sibling, or a person in whose care the serviceman was; fire or other a natural disaster that befell the family or close relative of a serviceman. These may include other exceptional cases when the presence of a serviceman in the family is necessary.

Difficult circumstances falling under the terms of the note should also be considered the occurrence of certain grounds for dismissal provided for by the Law on Military Duty. Such, for example, are the need for constant care for a relative (subparagraph “b”, paragraph 1 of Article 24 and subparagraph “c”, paragraph 3 of Article 51), a child (subparagraphs “c”, “d”, “ d" paragraph 1 of Article 24), providing assistance to a single mother with young children (subparagraph "f" paragraph 1 of Article 24) and some others.

Difficult circumstances of a service nature may include hazing on the part of colleagues, domestic instability, financial difficulties, and other unfavorable life situations, which, although they do not deprive the opportunity, but significantly complicate the serviceman’s stay in service, violate his legal status, vital interests, honor and dignity.

In each specific case, the question of the existence of these circumstances must be resolved individually, taking into account the specific circumstances of the case.

The military court of the Fokinsky garrison found B. guilty of evading military service for more than one month and convicted under Part 1 of Article 338 of the Criminal Code. Having considered the case by way of supervision, the military court of the Pacific Fleet overturned the verdict against B. and dismissed the case. According to the case materials, B.’s mother died on June 31, 1995, and for this reason he was granted leave. After the death of his mother, B. was dependent on his brother and sister born in 1987 and 1988, as well as his elderly grandmother. At the same time, B. remained the only one who could care for his relatives, which is what he actually did before his arrest.

Taking into account the above, B. on the basis of subparagraph. "b" clause 1 of Article 24 of the Law on Military Duty was subject to transfer to the reserve as the only person caring for family members who need outside help and are not fully supported by the state.

Under such circumstances, the military court of the fleet came to the correct conclusion that B.’s crime was committed due to a combination of difficult circumstances, and justifiably terminated this case on the basis of a note to this article.

Conclusion

The goal of the course research was achieved by implementing the assigned tasks. As a result of the research conducted on the topic “Criminal liability of a deserter,” a number of conclusions can be drawn.

The most criminogenically significant personality characteristics of a deserter soldier. In particular, these are:

1. Unstable psyche in combination with the most criminogenic - active age.

2. Unfavorable social background and position.

3. Low general educational level.

4. A serious shift in the motivational component and the inability to provide critical self-assessment of one’s own disconnecting behavior.

5. Underdevelopment of legal consciousness.

The immediate object of desertion is the established procedure for being in military service. Desertion is understood as the 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, i.e. for the purpose of evading fulfillment of a constitutional obligation, and not individual duties of military service (Article 338 of the Criminal Code of the Russian Federation).

Part 1 of Article 338 of the Criminal Code provides for punishment in the form of imprisonment for a term of up to seven years, and part 2 - for a term of three to ten years.

Desertion is a continuing crime: it lasts as long as the guilty person is off duty.

The initial moment of the crime is defined as the time of unauthorized abandonment of the unit or the last day of the period of reporting for duty.

The moment of ending the stay outside the territory of a military unit or other place of service is the time when the perpetrator’s stay outside the service was terminated (the perpetrator’s surrender; return to the unit; his detention by law enforcement officials or military departments).

In turn, a crime is considered completed not from the moment the criminal act ceases, but from the moment it begins, i.e. when the guilty person left the unit or other place of service without permission, or did not report for duty within the prescribed period. The qualifying features of this crime are desertion with weapons entrusted to the service, as well as the commission of desertion by a group of persons by prior conspiracy or by an organized group.

The objective side of desertion can be expressed in action - leaving a military unit or place of service, or in inaction - failure to appear at the unit or place of service upon appointment, transfer, from a business trip, from a medical institution, from dismissal, etc.

The subject of desertion is a military serviceman undergoing military service under conscription or contract. The subjective side of desertion consists of direct intent for the purpose of evading military service.

Russian army suffers from absolutely the same vices as our entire society. That is why she was unable to escape either crime, poverty, or high-profile scandals. Unfortunately, we are still very, very far from solving all the problems facing our army, therefore, no matter how hard it is to admit, desertion is doomed to remain a scourge for our Armed Forces for many years.

Bibliographic list of references

1. Constitution of the Russian Federation. - M.: Yurayt, 1999.

2. Criminal Code of the Russian Federation of June 13. 1996 N 63-FZ (as amended by the Federal Law of July 27, 2006 N 153-FZ).

3. Federal Law “On Military Duty and Military Service” dated March 28, 1998 N 53-FZ (as amended by Federal Law dated July 21, 2005 N 100-FZ).

4. Vladimirov D. Escaped division. // "Rossiyskaya Gazeta" - Federal issue No. 4477 dated September 27, 2007

5. Military criminal legislation of the Russian Federation: Scientific and practical commentary. Series "Law in the Armed Forces - consultant" / Under the general. ed. ON THE. Petukhova. M., 2004.

6. Deputies propose to imprison for desertion for up to 15 years. // Red Star, December 15, 2006.

7. Zhesterov P.V. On the question of the identity of a conscript serviceman of the internal troops who committed desertion. // Journal "Law: Theory and Practice". –2007. - No. 1.

8. Commentary on the Criminal Code of the Russian Federation / resp. ed.V.M. Lebedev - 3rd ed., add. and corr. - M.: Yurait-Izdat, 2004.

9. Criminal law of the Russian Federation. Special part: Textbook / Ed. A.I. Raroga. – M.: Yurist, 2001. – 638 p.

10. Criminal law of the Russian Federation. Special part: Textbook/Ed. prof. B.V. Zdravomyslova. – 2nd edition, revised. and additional – M.: Yurist, 2000.

11. Criminal law. A special part. Textbook for universities. / Responsible editors: D. Yu. Sc., prof. I. I Kazachenko, Doctor of Science Sc., prof. BEHIND. Neznamova, K. Yu. Sc., Associate Professor G.P. Novoselov. – M.: Publishing group NORM – INFRA – M, 1998.

12. Legal encyclopedic dictionary. / Ed. M.N. Marchenko. - M.: TK "Velby", publishing house "Prospekt", 2006.

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