Criminal liability for desertion under the Criminal Code of the Russian Federation, Article 338

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.

Lawyer's comments

In order for a lawyer to help in court, you need to tell him:

1. For what reasons was the crime committed?
2. Were there any circumstances due to which the citizen left the service?
3. How difficult were these circumstances?
4. Were there any quarrels or other conflicts in the military unit?

You cannot withhold information from your lawyer that will help you draw up a defense plan and avoid sanctions. The defense will be carried out based on the client's testimony

Therefore, it is very important to provide the defender with truthful information without fear of consequences.

If reporting information entails the threat of physical harm from colleagues or senior ranks, the lawyer will direct forces to ensure that the state provides protection.

What does judicial practice show under Art. 338

According to statistics, desertion is not a common crime. Still, from time to time, soldiers desert from their units, including with weapons in their hands.

Thus, examples of a crime under Art. 338, you can cite:

1. Private I. could not stand the harsh conditions of service in his opinion and deserted from the unit. The command immediately reported the incident, and he was put on the wanted list. The investigator of the military prosecutor's office leading the case suggested that Private I. would try to get into his hometown. And so it happened, the police arrested I. on the way to the house. Private I. was sentenced to prison for 4 years and 5 months.
2. Sergeants M. and S. voluntarily left the guard and the territory of the unit, taking with them 2 Kalashnikov assault rifles and 2 full horns of cartridges for them. 4 days later they were detained by the police while trying to rob a store. For desertion with weapons, the court sentenced them to prison for 7 and 8 years, respectively. They were also punished for attempted armed robbery.
3. Private Ch. left the unit without permission after being there for 1 week. Almost immediately he was detained by patrol. As the investigation established, the reason for the escape was bullying from senior employees. Based on the fact that the crime was committed for the first time and under difficult circumstances, Private Ch. was exempted from the possibility of imposing punishment.

All crimes committed by active military personnel while on duty, including desertion, are investigated by the military prosecutor's office. The consideration of such criminal cases is carried out by the Military Court, which until 1992 was called the tribunal.

What decisions are most often made under Article 338?

According to statistics, military crimes in Russia are not common. Every year, Military Courts consider 1,500-2,000 such criminal cases. It is difficult to say whether military personnel are really so disciplined, but most likely not.

The minimum number of criminal cases is due to several factors:

• The need for clear statistics. If a serviceman deserted, but ultimately changed his mind and decided to surrender, then with a high degree of probability there will be a circumstance for him that allows him to exclude the assignment of criminal liability.
• Punishment of the entire command: from the platoon commander to the unit commander. Few people want to be responsible for their subordinates and harm their career, so desertion is reported only in cases where they themselves were unable to catch the fugitive.
• Possibility of total inspection of the part. If there is a trial, then during its trial the reasons for the escape will become clear, which may be associated with the negative state of affairs in the unit. The command will not want to make this public.

Thus, only those who are truly dangerous to society are sent to trial. In this case, the trials are exemplary and the perpetrators are punished as severely as possible.

Mitigating and aggravating circumstances

Punishment for committing military crimes is carried out taking into account mitigating and aggravating circumstances, if any.

The main mitigating circumstances include:

1. Committing a crime for the first time. According to the provisions of Art. 338, this circumstance may even become a reason for exemption from liability.
2. Having small children.
3. Committing a crime in the presence of difficult circumstances that were a reason for desertion. More often we are talking about hazing at the place of duty, which becomes the reason for escape.
4. Confession. If done correctly, a confession may result in the crime being classified under a less serious article. 337.

Aggravating circumstances include:

• repeated desertion;
• the onset of serious consequences as a result of escaping from the place of duty;
• commission of a crime by a group of persons, including in the presence of a preliminary conspiracy;
• the most active role in planning, preparing and committing an illegal act;
• committing an unlawful act during a state of emergency or martial law.

The lists of mitigating and aggravating circumstances are not exhaustive. These circumstances, as well as the possibility of mitigating and aggravating the punishment due to their existence, are considered by the court on an individual basis.

The difference between desertion and AWOL

It may seem that desertion is very similar to leaving a unit without permission. But in fact, these two crimes have important differences. From the point of view of law, they have the same subject, object and objective side of the act, but the subjective sides differ.

Deserter of the First World War. Painting by Ilya Repin.

In both cases, the serviceman illegally leaves his unit. Both crimes are continuous and begin at the moment of leaving the place of duty, and end when the serviceman is detained or voluntarily appears.

The main points for qualifying a crime are the purpose and intent of the offender. A deserter escaping from the army wishes to avoid further service. A serviceman who leaves his unit without permission has no such goal. After some time he plans to return.

The voluntary appearance of the offender plays an important role in this case. It is not only a mitigating circumstance, but also largely qualifies the crime - if a citizen returned to the unit on his own, then it is logical to assume that he did not want to desert.

The law (Article 337 of the Criminal Code of the Russian Federation) strictly defines the time frame for “AWOL”. Its duration should not exceed ten days. For such an act, the violator faces arrest for up to six months or one year in prison.

Legal advice on comments to Art. 338 of the Criminal Code of the Russian Federation

• Hello, the question is: how long will I be wanted if I left the army (escaped). It wasn’t me who ran away, the time will come - I’ll go and serve...

  Lifelong, usually until they find it. Is he running around the greenery now? ) Well, after your question, he won’t be on the wanted list for long...

Objective side

If we talk about the objective side of the issue, it consists in leaving the unit without permission in order to evade further service.

It should be noted that in this aspect, desertion coincides with another crime - unauthorized abandonment of a unit. However, there are still differences: desertion is considered a more dangerous violation, since it encroaches on the constitutional duty of the person liable for military service to defend the homeland.

Execution of a deserter during the Great Patriotic War.

The qualification of the crime is not affected by the duration of the serviceman’s absence from the unit. Desertion belongs to the group of continuing crimes. This means that it continues until it is terminated for any reason: upon the arrest of the offender or his independent appearance. The latter is a circumstance that mitigates punishment.

For conscripts, desertion is considered complete after they reach the age of 28. For contract soldiers, this moment occurs when they reach the age limit for a certain military rank. For a captain, for example, it will be 45 years.

Arbitrage practice

Precedents under Art. 338 of the Criminal Code of the Russian Federation consider this norm as an independent crime or in combination. In 2016, the Judicial Collegium for Military Personnel considered the case of a major who committed murder and deserted.

Based on the totality of offenses, the major was charged with:

• 11 years in a general regime colony;
• a fine of 10 thousand rubles;
• deprivation of rank.

These sanctions were applied in accordance with the court verdict.
After which the major lost his rank, job and freedom. The defendant filed an appeal, but the higher court, having briefly reviewed the elements of the crime, left the appeal unsatisfied.

Another example is that the case was considered by a military board in 2011, in Moscow. The offender exercised the right to a jury trial. For desertion, the soldier was sentenced to 4 years in prison in a general regime colony. The citizen wanted to avoid military service altogether, so he hid in different localities.

Often leaving or avoiding service is accompanied by murders and robberies of innocent people. As a result, the punishment increases, although with proper work by the defender it could have been avoided. There are many such examples in judicial practice.

Article 338 desertion

The new version of the article for desertion provides for sanctions for the following acts:

• leaving the place of duty or military unit;
• failure to appear at the place of duty after dismissal, vacation or weekend.

The listed acts committed by one person are punishable by imprisonment for a maximum of 7 years.

If these offenses are committed with weapons, by a group of persons by prior agreement, or by an organized group, then the sentence is increased to 10 years.

The legislator defines desertion as the unauthorized abandonment of a military unit. The glossary gives an expanded definition of this concept: the battlefield is added to the list. So, if a soldier escaped during hostilities, he will not be convicted by a military court, but by a criminal court.

This norm was amended in 2011: changes affected the term of serving the sentence for offenses under Part 2. After conducting a scientific analysis, lawyers came to the conclusion that in terms of the number of offenses committed by military personnel, in particular those who deserted, three years is too lenient a punishment. Therefore, the sanctions were tightened.

Main conclusions

• If an individual who is liable for military service left the unit without permission, did not show up for service on time, or avoided it in every possible way, then he is considered a deserter.
• Desertion is subject to criminal liability on the basis of 337 and 338 legislative acts.
• The most severe form of punishment for deserters is imprisonment for as long as 10 years.
• If an individual became a deserter for the first time and was forced to commit this violation due to difficult life circumstances, then he may be exempt from criminal liability.

Story

With the transition to regular armies, the establishment and development of military discipline, and the educational training of soldiers, desertion

the actual battlefield began to diminish;
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 monetary rewards. rewards for informers and the like. Only in the 19th century, the adoption of improved recruitment systems, a reduction in service life and, most importantly, the establishment of a strictly defined legal order in the army, which transformed the entire essence of military life, turned desertion
from a mass phenomenon into an individual phenomenon.
The ancient Egyptians cut off the tongues of those who fled during the battle [ source not specified 1431 days
].
The Greeks deprived deserters of honorary positions, dressed them in shameful clothes, shaved half of their heads [ source not specified 1431 days
] and exhibited them in this form for three days on the market square;
Not a single girl could marry a fugitive Spartan, as a dishonest man. In Rome, desertion
was punishable by confiscation of property and the death penalty or sale into slavery (according to one version, this is how Spartacus became a gladiator slave).
The ancient Germans hung deserters from trees as traitors; other commanders, however, limited themselves to cutting off the nose, ears, tongue or gouging out eyes. During the period of mercenary troops, along with escape from service in the proper sense, an unauthorized transfer to service from one company to another or from one type of army to another came to the fore, for which the German codes prescribed, as well as for desertion
from the battlefield, the death penalty.
Gustav Adolf established a special punishment for the desertion
of an entire unit if it flees without offering proper resistance.
With special energy, but unsuccessfully, she fought against desertion
in Prussia.

Modern Russia

Today there is no war, and the life and service conditions of today's soldiers are much better than ten or twenty years ago. The service life is only one year, and modern technology allows military personnel to constantly be in touch with home.

Desertion in the late Soviet period or in the “dashing” nineties could still be explained by the rampant hazing in the barracks; today this phenomenon has practically disappeared. Despite this, soldiers continue to break their oath and run away from their units. In 2014 alone, 630 deserters were detained, in 2021 their number was 614.

Responsibility for such a situation lies not only with the armed forces, but also with Russian society as a whole. There really are problems in the army: the indifference of officers to their subordinates, the soullessness of the bureaucratic machine, hazing.

All these factors are a consequence of compulsory military service, excessive levels of corruption, and the lack of real reforms in the Russian armed forces.

The problem of desertion must be solved jointly by society and the armed forces.
However, it should be understood that the army is not a closed social system. She is only a cross-section of our society, and most of the problems of the armed forces come from the “civilian”.

The high level of youth crime in the country cannot but affect the crime situation in the army. More than a quarter of current conscripts grew up in dysfunctional families, every tenth had police reports or administrative violations. Many young men are poorly prepared physically and have mental problems. Such “quality” of the conscript contingent becomes fertile ground for various offenses, including desertion.

The low prestige of military service among the younger generation leads to a huge number of draft dodgers who do their best to avoid conscription. It is not surprising that, once in the ranks of the armed forces, such “defenders of the Fatherland” often desert.

Practice shows that desertion is usually caused not by one single circumstance, but by a whole complex of reasons, including personal motives and factors related to military service. It is likely that the solution to this problem should also be comprehensive, and this should be done even before the young man is drafted into the armed forces.

Comment on the article

Among the crimes committed during military service, desertion is considered dangerous. This offense negatively affects the military unit from which the soldier deserted. The more often such a crime is committed, the less authority the army enjoys.

The legislator left a note to the article: if a serviceman deserted for the first time, he can avoid criminal liability due to the difficult circumstances that prompted him to escape or fail to appear. In this note, the legislator shows that he understands the soldier and takes his place.

The subject of the crime is military service and the procedure for completing it. Violating Art. 338 of the Criminal Code of the Russian Federation, the soldier violates the duties regulated by the Constitution, specifically Art. 59. This norm states that a citizen is obliged to defend his Motherland and Fatherland.

The subject of the offense here is special: not every citizen is suitable as a subject. The offender is:

1. A person conscripted into the army.
2. A citizen who has signed a contract with the state.

Taking these factors into account, the subject of the offense is a person who has reached the age of 18 years.

An offense is considered committed when a serviceman does not arrive at the place of duty or leaves it without the permission of a senior rank. If the offender himself returned to the unit and admitted that he left the unit without permission, he still cannot avoid punitive measures. In this case, turning yourself in will only soften the punishment, but will not completely remove it. But if at the time of the commission of the offense the soldier had compelling reasons to leave the unit or difficult circumstances that forced him to do so, then by a court decision he is not subject to sanctions. Such reasons include the death of a loved one and other circumstances equivalent to this reason.

Reporting an impending offense is not encouraging, but, from the point of view of fulfilling civic duty, it deserves praise.

Criminal liability for desertion occurs after the offender has returned to the military unit after voluntarily leaving it. The offense has a statute of limitations - it expires when the person who committed the offense reaches conscription age. If a military man serves under a contract, then in his case the statute of limitations is three years.

Escape coupled with theft of a weapon is classified as a combination of offenses and is punished accordingly. An offense specified in the norm is regarded as a serious crime.

Subject

The subject of this crime is military personnel who are undergoing conscript or contract service, as well as citizens called up from the reserves for training.

A citizen cannot be recognized as a deserter if he has escaped from a place of detention, because during this period he falls out of normal military legal relations. In this case, a soldier who escaped from a disciplinary unit is considered a deserter.

The presence of a deserter with a weapon entrusted to him in his service, as well as escape as part of a group with a preliminary conspiracy are signs that make it possible to qualify this crime. The presence of any of them indicates the second paragraph of Article 338 of the Criminal Code of the Russian Federation, which threatens the violator with more serious punishment.

True, the existence of a preliminary conspiracy still needs to be proven in court. If this fails, then the crime is qualified under the first paragraph of Article 338.