ST 51 of the Criminal Code of the Russian Federation.
1. Restrictions on military service are imposed on convicted military personnel performing military service under a contract for a period of three months to two years in cases provided for by the relevant articles of the Special Part of this Code for committing crimes against military service, as well as convicted military personnel performing military service under contract, instead of corrective work provided for in the relevant articles of the Special Part of this Code.
2. From the monetary allowance of a person sentenced to military service restrictions, deductions are made to the state's income in the amount established by a court verdict, but not more than twenty percent. While serving this sentence, the convicted person cannot be promoted in position or military rank, and the term of punishment is not counted towards the length of service for the assignment of the next military rank.
Restrictions on military service are assigned only to contract soldiers
Restrictions on military service are assigned only to military personnel undergoing military service under a contract , including those who have entered into the first contract for military service and have not served the statutory conscription periods at the time of sentencing. Military personnel undergoing military service upon conscription are not subject to restrictions on military service.
In the event that a crime was committed by a serviceman during military service under a contract, but at the time of sentencing the contract had expired and a new contract had not been concluded with the serviceman, a restriction on military service cannot be imposed.
If a serviceman committed a crime during his military service, but at the time of sentencing he lost the status of a military serviceman, he cannot be assigned a restriction on military service. Moreover, if there is no other type of punishment in the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, he should be given a more lenient punishment than provided for in the sanction of the corresponding article. Link to Art. 64 of the Criminal Code of the Russian Federation is not required in such cases.
Judicial practice under Article 51 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 November 1, 2017 N 48-APU17-21
The fact that the experts, answering the questions posed, spoke about the existence of factual grounds for the appointment of a defender in accordance with paragraph 3 of part 1 of Art. The Criminal Code of the Russian Federation, on the use of compulsory measures of a medical nature in conditions of deprivation of liberty, actually invaded the field of jurisprudence, that is, went beyond the limits of their professional competence, does not call into question the correctness of the conclusions of experts on issues of his limited sanity and other issues that are motivated, based on a comprehensive and complete study of the circumstances of the case, the personality and behavior of the Fomins, including during a legally significant period of time, the presence of traumatic brain injuries, the data of their examinations and treatment, are clear and understandable, given by specialists in the field of forensic psychiatry with significant expert experience and within the limits of special knowledge. Contrary to the arguments of the complaint, the Judicial Board does not see any contradictions in the experts’ conclusions about the presence of retrograde amnesia in the Fomins, weakening of memory and the absence of a pronounced decrease in memory and impairment of consciousness.
Appeal ruling of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated June 17, 2020 No. 3-APU19-10
Only if it is impossible for him to participate in order not to disrupt court hearings in defense of Tseboev, also in accordance with Art. The Criminal Code of the Russian Federation was attended by lawyers T.N. Platinskaya as assigned. and Popova A.Yu. Tseboev himself, when temporarily replacing lawyer V.V. Zazersky. I did not make any statements about the impossibility of their participation for one reason or another, especially due to their lack of preparation, against these defenders.
Appeal ruling of the Appeal Board of the Supreme Court of the Russian Federation dated February 16, 2021 N APL21-19
Martynova S.I. filed an administrative claim with the Supreme Court of the Russian Federation, in which she asked to cancel this decision as illegal and unfounded. She referred to the fact that it was adopted in violation of her right to judicial protection and to receive qualified legal assistance. In support of her claim, Martynova S.I. indicated that at the time of consideration of the Request she was convicted by a court verdict and was in custody, and therefore was limited in the choice of forms and methods of defense; due to isolation, she did not have the opportunity to exercise the right to receive qualified legal assistance by choosing a lawyer (defender) ) at its discretion and conclusion of an agreement. Considers the decision of the Higher Qualification Committee of the Russian Federation adopted at the meeting to refuse to satisfy her request to appoint a defense attorney on the basis of part 2 of article, part 3 of article of the Criminal Code of the Russian Federation, illegal.
Decision of the Supreme Court of the Russian Federation dated December 1, 2020 in case No. AKPI20-805
Martynova S.I. filed an administrative claim with the Supreme Court of the Russian Federation to cancel the Decision, citing that it was adopted in violation of her right to judicial protection and to receive qualified legal assistance. In support of her claim, Martynova S.I. indicates that at the time of consideration of the Request she was convicted by a court verdict and was in custody, and therefore was limited in the choice of forms and methods of defense; due to isolation, she did not have the opportunity to exercise the right to receive qualified legal assistance by choosing a lawyer (defender) ) at its discretion and conclusion of an agreement. Considers the decision of the Higher Qualification Committee of the Russian Federation adopted at the meeting to refuse to satisfy her request to appoint a defense attorney on the basis of Part 2 of Article, Part 3 of Article of the Criminal Code of the Russian Federation, illegal.
Features of restrictions on military service. Differences and similarities with correctional labor
Punishment in the form of restrictions on military service has common features with correctional labor (they have in common - monetary deductions from the convicted person). However, these two punishments are imposed on different subjects and under different conditions.
Restrictions on military service are imposed for a period of three months to two years, while correctional labor is assigned for a period of two months to two years. In addition, the following circumstances are specific to restrictions on military service:
- continuation of military service by convicts at their previous place of service, but on a compulsory basis;
- withholding to the state income from the monetary allowance of a convicted serviceman the amounts established by a court verdict, but not exceeding 20%;
- exclusion of the possibility of promotion and military rank. The term of punishment is not counted towards the length of service for the assignment of the next military rank.
The specified restrictions on military service must be imposed in full; the current legislation does not provide for the possibility of partially applying these restrictions.
In addition, the criminal law does not allow any other restrictions on military service to be imposed on convicted military personnel.
Second commentary to Art. 51 of the Criminal Code of the Russian Federation
1. Restriction on military service is the main type of punishment imposed on convicted military personnel serving under a contract. This type of punishment is a modification of correctional labor in relation to the named category of military personnel.
2. In cases specifically provided for by the sanctions of the relevant articles of the Special Part of the Criminal Code of the Russian Federation for committing crimes against military service, a restriction on military service is assigned for a period of three months to two years. And instead of correctional labor, this punishment is imposed for a period of two months to two years.
3. A feature of the type of punishment under consideration is the convict’s continued military service (albeit on a compulsory basis) at his previous place of service, burdened by the withholding of sums from his allowance to the state in the amount established by a court verdict, but not more than twenty percent. Since the lower threshold for withholding funds is not established by law, unlike correctional labor, theoretically it can be lower than five percent.
4. While serving a sentence, a convicted person cannot be promoted in position or military rank, and the term of punishment is not counted towards the length of service for the assignment of the next military rank.
The procedure and conditions for the execution of punishment in the form of restrictions on military service are regulated by Chapter 18 of the Penal Code of the Russian Federation.
What payments received by military personnel are not withheld?
The amount of deduction established by a court verdict from the salary of a convicted serviceman is calculated from the official salary, salary according to military rank, monthly and other allowances and other additional monetary payments (Article 144 of the Penal Code of the Russian Federation).
These payments do not include compensation for renting (subletting) housing, for sanatorium-resort treatment, insurance payments, a one-time allowance upon dismissal from military service, travel allowances and other payments that are not included in the pay of military personnel.
In addition, deductions should not be made on income received by a military member not in connection with military service. For example, military personnel are not prohibited from engaging in scientific, teaching and creative activities. Therefore, the remuneration received for this work is not included in the salary, and, accordingly, deductions cannot be made from it in connection with serving the restriction on military service.
Commentary to Art. 51 Criminal Code
1. The restriction on military service has the following features: a) applies only to military personnel performing military service under a contract; b) excludes the possibility of their promotion while serving a sentence in office and military rank, and the term of punishment is not counted towards the length of service; c) from the monetary allowance of the convicted person, deductions are made to the state income in the amount established by the court verdict, but not more than 20%.
2. The commented type of punishment is imposed, as a rule, for committing crimes against military service, provided for in Chapter 33 of the Criminal Code, since sanctions in the form of restrictions on military service are established only for the commission of these crimes. However, the law provides for the possibility of imposing this type of punishment for other crimes instead of correctional labor provided for the commission of these acts by the relevant articles of the Special Part of the Criminal Code.
3. The amount of deduction from the monetary allowance of a convicted serviceman established by a court verdict is calculated from the official salary, salary according to military rank, monthly and other allowances and other additional monetary payments (Article 144 of the Penal Code of the Russian Federation).
Cases of imposing restrictions on military service
Restrictions on military service are imposed in the following cases:
- when the sanction of the article of the Special Part of the Criminal Code of the Russian Federation, which qualifies a crime against military service, provides for punishment in the form of a restriction on military service;
- when the restriction on military service in accordance with Part 1 of Art. 51 of the Criminal Code of the Russian Federation is assigned instead of correctional labor.
Restrictions on military service are assigned, as a rule, for committing crimes against military service provided for in Chapter 33 of the Criminal Code of the Russian Federation (Articles 332 - 334, 336, 337, 339 - 349 of the Criminal Code of the Russian Federation), since sanctions in the form of restrictions on military service are established only for committing these crimes. However, the law provides for the possibility of imposing this type of punishment for other crimes instead of correctional labor provided for the commission of these acts by the relevant articles of the Special Part of the Criminal Code of the Russian Federation.
Article 51 of the Code of Criminal Procedure of the Russian Federation. Mandatory participation of a defense attorney (current version)
1. The law recognizes the participation of a defense attorney as mandatory if:
- in the case there is no written statement from the suspect or accused to refuse the assistance of a defense lawyer (clause 1, part 1, article 51, part 1, article 52);
- the suspect or accused is only a minor, although it is not provided that the right to the mandatory participation of a defense attorney is reserved for a minor accused (suspect) who committed the incriminated act before adulthood, but reached the age of 18 during criminal proceedings (clause 2, part 1) ;
- a person is accused of committing a crime for which not only the death penalty, but also imprisonment for a term of over fifteen years or life imprisonment can be imposed as a punishment (clause 5, part 1);
- at least one of the accused filed a petition for the criminal case to be considered by a court with the participation of a jury, and if previously the defense lawyer had to participate already when the accused was announced about the end of the preliminary investigation and the case materials were presented for review (Part 1 of Article 426 of the Code of Criminal Procedure of the RSFSR) , then now his mandatory entry into the case occurs at a later time, namely at the time the accused submits a motion to consider the case by a jury (Part 2 of Article 51 of the Code of Criminal Procedure of the Russian Federation), which, within the meaning of Parts 4 - 5 of Art. 217 of the Code of Criminal Procedure takes place after familiarization with the case materials;
- at least one of the accused filed a petition for consideration of the criminal case in a special trial procedure established by Chapter. 40 Code of Criminal Procedure.
In accordance with Part 6 of Art. 247 of the Code of Criminal Procedure (introduced by the Federal Law of July 27, 2006), the participation of a defense attorney in absentee proceedings is mandatory.
2. Physical or mental disabilities referred to in paragraph 3 of part 1 of this article are deficiencies or illnesses due to which the suspect or accused cannot independently exercise his right to defense, i.e. preventing the personal exercise of the rights of a suspect or accused if he were deprived of the assistance of a defense attorney and legal representative. Physical disabilities are primarily defects or diseases such as muteness, deafness, blindness or visual impairment, as well as physical defects and injuries that significantly limit the ability to move, due to which the accused or suspect experiences additional difficulties, for example, when the need arises visits to the investigator, prosecutor, judge to file complaints, submit petitions or familiarize themselves with the case materials (absence or illness of legs, impaired motor functions). Physical disabilities are not only defects and injuries, but also the presence of an acute or chronic serious illness in the suspect or accused, due to which he cannot correctly perceive and evaluate the progress and results of investigative and other procedural actions. Physical disabilities that do not interfere with the exercise of procedural rights, even if they are of a very serious nature (for example, the absence of a hand that the accused does not use when writing), are not grounds for the mandatory participation of a defense attorney. Mental disabilities that require the mandatory participation of a defense attorney should also be considered mental disorders that do not exclude the sanity of the suspect or accused. In unobvious cases, to resolve this issue, it is necessary to obtain a medical report (by analogy with clause 4, part 1, article 208) or even conduct a forensic examination. It should be borne in mind that all doubts are interpreted in favor of the accused or suspect. Therefore, even the very fact of ordering such an examination can serve as a reason for providing mandatory assistance from a defense lawyer, as is the case in proceedings on the application of compulsory medical measures (Article 438).
3. Consideration of a criminal case without the participation of a defense lawyer in the cases provided for in this article is a significant violation of the criminal procedural law, entailing the reversal of the sentence (clause 4, part 2, article 381).
4. The mandatory participation of a defense lawyer can be ensured both by inviting a defense lawyer for the suspect, accused or other persons (Part 1 of Article 50) and by appointment (Parts 2 - 4 of Article 50).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
