ST 338 of the Criminal Code of the Russian Federation.
1. Desertion, that is, unauthorized abandonment of a unit or place of service in order to evade military service, as well as failure to appear for service for the same purposes, is punishable by imprisonment for a term of up to seven years.
2. Desertion with weapons entrusted to the service, as well as desertion committed by a group of persons by prior conspiracy or by an organized group, is punishable by imprisonment for a term of up to ten years. Note. A serviceman who has committed desertion for the first time, as provided for in the first part of this article, may be released from criminal liability if the desertion was the result of a combination of difficult circumstances.
Commentary to Art. 338 Criminal Code
1. The objective side of desertion consists of unauthorized abandonment of a unit or place of service or failure to appear for service. However, unlike the crime provided for in Art. 337 of the Criminal Code, the law does not establish a specific period for unauthorized absence or failure to appear.
2. Since the crime is ongoing, it is characterized by two ending points. Legally, the crime will end from the moment of unauthorized leaving the unit or place of service or failure to appear for service. The actual end of the criminal act will be its suppression by law enforcement agencies or the voluntary surrender of the military personnel. If a person fails to confess or is not detained, the crime also ends due to the loss of the person’s obligations to perform military service. This moment should be considered the person reaching the age after which the specified duties under no circumstances can be assigned to him, or the age that is the limit for being in military service (clause 25 of the Resolution of the Plenum of the Supreme Court of the Russian Federation 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”).
3. The subjective side is characterized by the presence of a special goal - to evade military service.
4. The subject of the crime is a soldier performing military service under conscription or contract.
5. Part 2 provides for qualified desertion. Weapons entrusted in service should be understood as weapons that a person lawfully possesses due to the duties of military service assigned to him (for example, weapons issued for duty on guard, in a border patrol guarding the State Border of the Russian Federation).
6. The content of the note is similar to the note to Art. 337 of the Criminal Code, however, a serviceman’s release from liability is possible only if he commits unqualified desertion for the first time.
What is desertion
Many individuals become deserters unknowingly because they do not have a complete and correct understanding of this concept. If an individual who is liable for military service escapes from service, then he is considered a deserter.
The same applies to cases related to evasion from the army. In addition, there is a figurative meaning of such a word as desertion. Individuals who try in every possible way to avoid fulfilling their direct duties are also called deserters.
This article will discuss desertion, which is directly related to military service. Punishments for this offense are imposed on the basis of article number 338, which is part of the Criminal Code. The same source contains article number 337, which regulates the types of responsibility for leaving the territory of a military unit without permission.
Act No. 337 of the Criminal Code of the Russian Federation is devoted to the unauthorized departure of individuals from military units, and Article No. 338 approves punishments for desertion in a broader sense.
Article 338 of the Criminal Code of the Russian Federation
The first part of Article 338 of the legislative act states that if an individual voluntarily left a military unit or any other place in which he was serving, then he should be classified as a deserter. However, the circumstances under which the military man carried out an act of this kind are also important.
If there were absolutely no valid reasons and the individual fled only to avoid military service, then he is clearly considered a deserter. The same applies to situations related to failure to appear for duty. For the listed violations, criminal liability in the form of imprisonment is provided. The maximum duration of this sanction is seven years.
Desertion can be carried out in special ways. The second paragraph of the same Article 338 is devoted to such special cases, which implies the imposition of more severe forms of punishment on violators. If an individual left a military unit with a weapon that is a service weapon, then he will be convicted precisely under the second part of the article. The same applies to cases where desertion was committed not by one individual, but by an entire organized group.
Also, paragraph 2 of Article 338 is relevant if the military managed to commit desertion by prior conspiracy. If two or more individuals met in advance and discussed all the details of unauthorized excommunication from a military unit, and then successfully put all this into practice, then they are considered deserters who acted by prior agreement.
If two military personnel were absent from service without permission at the same time, but the court did not prove that they were in collusion, then each of them will be convicted under Part 1 of Article 338.
As for an organized group of deserters, this concept means the participation in a crime of a stable group of individuals who have previously united their efforts. Obvious signs of an organized group are the presence in its composition of a leader, according to whose instructions all other criminals acted.
In addition, if the deserters had some kind of joint plan, which was subsequently successfully implemented, then it is considered that they also committed a crime as part of an organized group. Another clear sign of the presence of an organized group is the preparation by several individuals of false documentation for leaving the territory of military service, as well as civilian clothing.
As for the punishments for those convicted under the second paragraph of Article 338, they also face imprisonment, but only for a ten-year term. There is a special note to this legislative act. It notes that in some situations a serviceman may be exempt from criminal liability.
The punishment can be canceled only if the individual violated the first paragraph of Article 338. In addition, this violation must necessarily be committed for the first time, and the offender must be forced to commit it by difficult life circumstances.
Article 337 of the Criminal Code of the Russian Federation
Also related to desertion is Article No. 337 of the Criminal Code of the Russian Federation, which regulates liability for narrower cases and is devoted exclusively to unauthorized excommunication from duty stations. The legislative act identifies four main elements of crime:
- First point. If an individual undergoing military service by conscription leaves the unit without permission, then as a result he will be punished on the basis of Part 1 of Article 337. The same applies to situations of not joining military service without any good reason. If a military man does not report to his unit after a business trip, vacation, or treatment within two to ten days after the end of his discharge, then the first paragraph of the article is relevant.
- Second point. Also, military personnel can serve their sentences in a disciplinary unit. If, during the period of disciplinary punishment, the individual on whom it was imposed escapes or leaves the unit without permission, using false documents, then criminal liability will be imposed on him under the second paragraph 337 of the legislative act.
- Third point. This part of the article comes into force if a military man serving under a contract or conscription leaves the unit without permission and is absent for a period of ten to thirty days. To impose liability for going AWOL, it must be proven that the individual was not motivated by any valid reasons. Also, the third part is relevant if the military man did not show up for duty and the period of his absence was at least ten days and a maximum of one month.
- Fourth point. If an individual has committed an offense that contains the elements of a crime described in the third paragraph of paragraph 337 of the act, but the period of his absence exceeded 1 month, then the last part of the same article comes into force. The note to the legislative act states that if an individual violated its rules for the first time in his life and did so on the basis of extenuating circumstances, then he may be released from liability.
If convicted under Part 1, the individual faces arrest, the duration of which can be no more than 6 months. In addition, the violator may be assigned to a disciplinary military unit for 1 year. If an individual is found guilty under paragraph 2 of Article 337, he will be imprisoned for a two-year period.
In situations of violation of the provisions of Part 3, a service restriction is provided for two years. They may also be assigned to a disciplinary colony for the same period. In addition, imprisonment for a period of three years is possible. The punishment regulated by paragraph 4 of Article 337 is imprisonment for five years.
Second commentary to Art. 338 of the Criminal Code of the Russian Federation
1. The crime is completed from the moment of leaving the unit or place of service or failure to appear for service in order to completely evade military service.
2. Desertion is a continuing crime.
3. From the subjective side, desertion is committed with direct intent and with the aim of evading military service.
4. The subject of the crime is a military serviceman performing military service under conscription or contract.
5. Escape from the guardhouse of a serviceman arrested in a disciplinary manner, sentenced to detention in a disciplinary military unit or serving a sentence of arrest (see Article 54 of the Criminal Code of the Russian Federation) is a military offense and, depending on the specific circumstances, can be qualified under Art. Art. 337 or 338 of the Criminal Code.
6. In the event of desertion of a serviceman with a weapon entrusted to him during his service, the act is subject to qualification under Part 2 of Art. 338. If the unlawful taking of a weapon during desertion contains signs of theft of this weapon, then it must be qualified under Art. 226.
7. On the concepts of a group of persons by prior conspiracy and an organized group, see the commentary to Art. 35.
8. The question of the degree of difficult circumstances that can be recognized as a basis for releasing a soldier who committed desertion from criminal liability should be decided taking into account the circumstances listed in the commentary to Art. 337.
Judicial practice under Article 338 of the Criminal Code of the Russian Federation
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 27, 2018 N 66-APU18-18
Vyacheslav Aleksandrovich Kruzhay, ... convicted: 12/01/1999 (subject to subsequent changes) under paragraph “z” of Part 2 of Art. 105, part 2 art. 338, paragraphs “a”, “b”, part 2 of Art. 158, paragraph “b”, part 4, art. 226, part 2 art. 167, part 2 art. 222, part 3 art. Criminal Code of the Russian Federation, to 17 years 8 months of imprisonment, released on 02/22/2011 on parole for 5 years 3 months 20 days, -
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated August 22, 2019 N 5-APU19-62
Actions of Faizaliev Sh.N. are criminally punishable both in the Republic of Tajikistan and on the territory of the Russian Federation, where they are subject to qualification under Part 1 of Art. 338 of the Criminal Code of the Russian Federation, the sanction of which provides for punishment in the form of imprisonment for a term of over one year.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 10, 2019 N 5-APU19-66
In extradition to bring him to criminal responsibility under paragraph “b” of Part 2 of Art. 338.1 and according to Part 2 of Art. 338 of the Criminal Code of the Republic of Tajikistan for the illegal provision of a land plot by a group of persons by prior conspiracy and for unauthorized construction on an unauthorized occupied site was denied due to the fact that these crimes are not criminally punishable under the criminal law of the Russian Federation.
Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated May 22, 2018 N 206-APU18-2
according to Part 1 of Art. 338 of the Criminal Code of the Russian Federation for a period of 3 years, under paragraph “d”, part 2 of Art. 161 of the Criminal Code of the Russian Federation for a period of 3 years, according to paragraphs “a”, “d”, part 2 of Art. 161 of the Criminal Code of the Russian Federation (for the episode in relation to Ch.) for a period of 3 years 6 months,
Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated July 4, 2017 N 207-APU17-1
according to Part 1 of Art. 338 of the Criminal Code of the Russian Federation - for a period of 2 years, according to clause “z”, part 2 of art. 105 of the Criminal Code of the Russian Federation - for a period of 15 years without restriction of freedom, under paragraph “c” of Part 4 of Art. 162 of the Criminal Code of the Russian Federation - for a period of 10 years without fine or restriction of freedom,
Appeal ruling of the Judicial Collegium for Military Personnel of the Supreme Court of the Russian Federation dated September 12, 2017 N 209-APU17-2
sentenced to imprisonment under Part 2 of Art. 339 of the Criminal Code of the Russian Federation for a period of 2 years; according to paragraphs “a”, “b”, “c”, part 2 of Art. 158 of the Criminal Code of the Russian Federation for a period of 3 years; according to Part 1 of Art. 338 of the Criminal Code of the Russian Federation for a period of 4 years; according to Part 3 of Art. , part 3 art. 322 of the Criminal Code of the Russian Federation for a period of 3 years.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated February 13, 2018 N 67-APU18-3
On December 17, 2012, the garrison military court of the Novosibirsk region under Part 1 of Art. 338 of the Criminal Code of the Russian Federation to imprisonment for a term of 2 years 6 months, released on June 12, 2015 upon completion of the sentence; On April 12, 2021, by the Barabinsky District Court of the Novosibirsk Region under paragraphs “b”, “c”, part 2 of Art. 158 of the Criminal Code of the Russian Federation to imprisonment for a term of 2 years suspended with a probationary period of 1 year,
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated September 10, 2020 N 44-UDP20-14-K7
Thus, it should be recognized as justified the argument of the cassation submission that the court did not violate the provisions of Part 1 of Art. 338 and part 3 of Art. 339 of the Criminal Code of the Russian Federation, in connection with which the decision of the cassation court to cancel the verdict and the appeal ruling on these grounds cannot be considered legal.
