Absence of a contractor for service. Absence from service under the contract

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Asked 2013-02-23 12:14:01 +0400 in the topic "Defence, military service, weapons" from Moscow

What will be the contractor for not entering the service? (I want to terminate the contract)

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Replies (1)

Is it possible not to go to work at all if you are subject to dismissal, but have not yet been given housing?

On the one hand, a serviceman must perform his duties only during the period of the contract, because. agreed with the Ministry of Defense about this. Moreover, "the term of military service expires ... on the corresponding month and date last year the term of the contract ... "(clause "b", clause 3, article 3 of the Regulations on the procedure for military service). On the other hand, until the units are excluded from the lists, military service is not considered completed, which implies the burden of performing a certain range duties (general - during the performance of military service duties, official - if you are in a position, special - when recruited). and" paragraph 2 of article 13, paragraph 16-17 of article 34 of the Regulations on the procedure for military service).

For some time, there was no clear definition in the near-judicial and near-prosecutor environment whether the behavior of servicemen should be considered unlawful when absent from service after the expiration of the contract. Logic, civil and labor legislation spoke in favor of one opinion, and the norms of military law spoke in favor of the other. (Personally, I have always believed and still believe that only special military norms are applicable here. For example, paragraph 9 of Article 5 of the Regulations ... gives an exhaustive list of cases for the expiration of the contract, and the onset of a certain calendar date, alas, is not included in it) .

As recently as last week, I spoke on the issue under consideration with the deputy chairman of the Moscow City Military Court. Here is the essence of his explanation: if a serviceman is not excluded from the lists of the unit, he is a 100% serviceman without exceptions and reservations. Those. Absence from work for more than 10 days entails appropriate criminal liability. The presence of a medical certificate of limited suitability or complete unfitness, reaching the age limit and other circumstances do not matter. Because according to the status, a citizen is considered a soldier only during the period of his military service, then since the military service is not completed (or cannot be completed - it does not matter), he continues to be such with all the ensuing consequences.

This clarification is entirely consistent with the Ruling of the Constitutional Court of the Russian Federation of 2004 No. 322-O:

After the expiration of the period specified in the contract, the serviceman realizes his right to work through either further military service - until he is provided with housing, or dismissal from military service - subject to his subsequent provision with housing at the place of future residence. Consequently, in the absence of a written consent of a serviceman to dismissal until the improvement of his living conditions and upon the expiration of the period specified in the contract, such a serviceman should be considered to be doing military service on a voluntary basis only until the day he is provided with housing.

Art. 48 of the Disciplinary Charter of the Armed Forces of the Russian Federation defines the framework for the permissible behavior of military personnel, the violation of which entails disciplinary liability. This framework is military discipline and public order, which, in turn, consist of "strict and precise observance by all military personnel order and rules ... "(pay attention to the subject - a soldier), and such behavior, which is regulated by the norms existing in society, but goes beyond the framework of military service relations (here the subject is a citizen). That is, in relation to disciplinary responsibility a person doing military service acts simultaneously in two guises - as a soldier and as a citizen.In relation to criminal liability (Article 337 of the Criminal Code), the subject is unambiguously defined - a soldier.

Thus, until a person is excluded from the lists of the unit, he can be mocked and mocked, sometimes in a particularly perverted form, for example, transferred to an equivalent position in Dalnemukhosransk. And let him try not to obey the order! ..

Repeatedly during the period of service observed such a picture. A soldier who had the right to be dismissed with the provision of housing, especially if he was declared unfit for military service, or had reached the age limit of stay in conjunction with the right to a pension, wrote a report on dismissal: "I ask you to dismiss with the provision of housing in kind there, I do not agree to receive GZhS, I refuse to conclude a new contract, do not exclude units from the lists until housing is provided ... ". And he stopped going to the service, appearing at a divorce every 10 days (and some even hammered a bolt, and, by the way, in in some cases, the prosecutor's office supported them in this).

Some commanders in such situations simply stopped thinking about such servicemen, depriving them of everything that was possible just in case. No initiation of criminal cases, no trials - "she died, so she died!". Personnel officers, without much effort, sent submissions for dismissal, which were also sluggishly lost, blurred, or returned under any pretext back. A lot of time passed and nothing changed.

Other commanders fell into a quiet panic, constantly conducting investigations, checks and inquiries, and periodically straining lawyers and personnel officers to resolve the situation as soon as possible. The position of lawyers was unchanged: it is impossible to dismiss without housing (what else can you say?!). The personnel officers, according to Saltykov-Shchedrin, "only trembled with exclamations." On this matter became a stake.

And only one of the commanders in my lifetime worked a miracle: he strained and got an apartment for one soldier. Actually! for social work! according to the rules! ... Of course, the serviceman was also deprived of everything, repeatedly risked falling under a criminal case, was under constant psychological pressure, was known as a complete scoundrel, despite many years of impeccable service, and so on ...

As for the moral aspects of the problem of "going out or not going out", this is already a matter of conscience for everyone, and the law in this matter is dry and impartial. On the one hand, a serviceman, through no fault of his own, cannot terminate these legal relations and start earning money in another job. Much more money! especially considering that he would probably be deprived of all possible allowances, leaving a bare salary and a seniority allowance. (Recall, by the way, that military personnel are prohibited from engaging in other paid activities). The state itself was obliged to make a fuss, and still find a worthy home for its defender. And thereby fulfill the LAW, by the way, written by him.

On the other hand, the serviceman continues to receive money from the state, despite the complete disregard for military labor. And this is not fair (especially since at the same time the work of this non-exit, sometimes narrowly qualified and especially difficult, colleagues perform for him, not getting a damn thing for it).

So the problem of choosing "go out - do not go out" is far from ambiguous.

Conclusion

Not going to work is fraught with prosecution: up to 10 days - to disciplinary, more - to criminal.

We also do not forget that the most painful blow is a blow to the pocket.

As for conscience - let it not bite!

If you have something to say - in the comments. Questions and discussion - .

Public order is the total system public relations, which develops as a result of the implementation of social norms: legal norms, moral norms, norms public organizations, norms of non-legal customs, traditions and rituals. // Khropanyuk V.N. Theory of Government and Rights. M., 1995. S. 350.

Hello, I committed a gross violation in the service: I didn’t go to work for a day, at that moment I had no penalties, the unit commander took an explanatory note from me and said that I had two choices: to quit of my own free will or I would be fired under a “hard” article after which I will not be able to get a job in the civil service. Is he right and what should I do?

Answer

Absenteeism, that is, absence from the workplace without good reason throughout the working day (shift), regardless of its (her) duration, as well as in the event of absence from the workplace without good reason for more than four hours in a row during the working day (shift) is a serious disciplinary offence. The Military Collegium of the RF Armed Forces has clearly determined that a serviceman can be fired for non-compliance with the contract on his part, if he has committed such an offense. In this case, dismissal is possible even if no penalties have been applied to you before, and this absenteeism was the only one. To do this, absenteeism must be recorded by the command. With this dismissal, the consequences are more unfavorable than with dismissal at the request of the employee.

SOLUTION

IN THE NAME OF THE RUSSIAN FEDERATION

"DD.MM.YYYY Kaliningrad

Kaliningrad Garrison Military Court consisting of:

the presiding judge BORISOVA A.E., with the secretary FULL NAME3, with the participation of the applicant, the representative of the official FULL NAME4, having considered in open court at the premises of the court a civil case at the request of the corporal FULL NAME2 to challenge the actions of the commander of the military unit №, related to bringing the applicant to disciplinary responsibility ,

installed:

FULL NAME2 in the application indicated, and at the hearing explained that by order of the commander of the military unit No. dated DD.MM.YYYY No. disciplinary action"Severe reprimand" for absence from work without good reason for more than 4 hours in a row during the established daily duty hours DD.MM.YYYY. Said order the applicant considers unlawful on the grounds that in the morning DD.MM.YYYY she asked her platoon commander FULL NAME9 to leave the service by phone to visit her son who is being treated in the hospital and consult a doctor about her state of health. In addition, a disciplinary sanction was imposed on her in violation of the 10 day period established by Art. 83 of the Disciplinary Charter of the Armed Forces Russian Federation. In this case, the proceedings before the imposition of the penalty were not conducted.

How to fire an employee for absenteeism?

The applicant asks to recognize the disputed order as illegal, and to oblige the official to cancel it.

The official's representative did not recognize the applicant's claims and explained that DD.MM.YYYY the applicant was absent from work without anyone's permission. DD.MM.YYYY asked the command to go to the polyclinic to warm up her hand, and she herself was at the reception<данные изъяты>, while the applicant took time off until lunch, and was absent from work throughout the working day, which deceived the command. On the same day, she did not submit a report and a certificate from a medical institution on her release from military service. Named documents the applicant submitted only DD.MM.YYYY than violated the requirements of Article. 359 of the Charter of the Internal Service of the Armed Forces of the Russian Federation. These circumstances served as the basis for bringing the applicant to disciplinary responsibility.

After hearing the explanations of the applicant and the representative, examining the evidence presented, the court comes to the following conclusions.

From the extract from the order of the commander of the military unit No. dated DD.MM.YYYY No. it is seen that FULL NAME2 was declared a “severe reprimand” “for being absent from service without a good reason for more than 4 hours in a row during the established daily duty time DD.MM.YYYY, deception of the commander , improper performance of Art. 359 of the Charter of the Armed Forces of the Armed Forces of the Russian Federation.

In accordance with Art. 28.5 of the Federal Law of May 27, 1998 No. 76-FZ “On the Status of Military Personnel”, gross disciplinary offenses include, among others, the absence of a military serviceman undergoing military service under a contract in a military unit or a place of military service established outside the military unit without good reason for more than four consecutive hours during the established daily duty hours.

According to copies of the protocol of gross disciplinary misconduct from DD.MM.YYYY, materials of the administrative investigation FULL NAME2 DD.MM.YYYY was absent from service in the military unit without good reason for more than 4 consecutive hours during the established daily service time. Explanation by this fact the applicant refused to give. This violation of military discipline became possible due to personal indiscipline Corporal FULL NAME2.

witness FULL NAME5 - the commander of the applicant's platoon in court explained that DD.MM.YYYY neither by phone nor personally FULL NAME2 was not asked to leave his service.

The applicant's argument that the disciplinary sanction was imposed on her in violation of the 10 day period established by Art. 83 of the Disciplinary Charter of the Armed Forces of the Russian Federation, the court finds it untenable on the grounds that the decision by the commander of military unit No. under the protocol of gross disciplinary offense against FULL NAME2 was adopted by DD.MM.YYYY, and the contested order was issued by DD.MM.YYYY.

The materials of the administrative investigation refute the applicant's argument that no such investigation was carried out.

Under such circumstances, the court comes to the conclusion that the commander of military unit No., issuing an order from DD.MM.YYYY No. on declaring FULL NAME2 a disciplinary sanction "severe reprimand" for being absent from service without good reason for more than 4 hours in a row during the established daily duty hours DD.MM.YYYY, acted in within the powers granted to him, did not violate the applicant's legal rights.

Do not refute the said conclusion of the court and the testimony of witnesses FULL NAME6 and FULL NAME7 that they saw the applicant DD.MM.YYYY in a sick state, since FULL NAME2 had the opportunity to apply on that day for medical assistance to the clinic, hospital or call a doctor at home. However, as the applicant herself explained, she did not do this.

Article 359 of the Charter of the internal service of the Armed Forces of the Russian Federation, approved by Decree of the President of the Russian Federation of November 10, 2007 No. 1495, establishes that the conclusion on the partial or complete release of a serviceman from the performance of official and special duties, classes and work is given by a doctor for up to six days, and in military units where the position of a doctor is not provided for by the state - as a paramedic for up to three days. If necessary, the release may be extended. Recommendations of a doctor (paramedic) on the partial or complete release of a serviceman from the performance of duties are subject to mandatory implementation by officials. The release from the performance of duties of military service of military personnel undergoing military service under the contract, and their release to service after illness, is announced in the order of the regiment commander.

According to help<данные изъяты>FULL NAME2 in the period from DD.MM.YYYY to DD.MM.YYYY for health reasons needed to be released from duty.

FULL NAME2 in court clarified that DD.MM.YYYY was able to undergo examination by the named specialist only at the end of the working day, in connection with which she was able to submit to the command the named certificate and report on release from duty only DD.MM.YYYY. This statement of the applicant by the representative of the official has not been refuted.

In addition, the above Article 359 of the Charter of the Internal Service of the Armed Forces of the Russian Federation does not oblige a serviceman to submit a certificate of need for release from duty before the said release.

On this basis, the court comes to the conclusion that the indication in the challenged order that a disciplinary sanction was imposed on the applicant, including for “improper execution of Art. 359 of the Charter of the Armed Forces of the Armed Forces of the Russian Federation” is unfounded.

Neither the general military charters nor the current legislation establish the duty of a serviceman to inform the command of which particular medical specialist the serviceman is going to see. In this regard, the indication in the order that FULL NAME2 brought to disciplinary responsibility for "deception of the commander" is also unreasonable.

Based on the foregoing, guided by Article.Article. 194 -197, 258 Code of Civil Procedure of the Russian Federation, military court,

I decided:

Application FULL NAME2 satisfy partially.

Recognize the order of the commander of the military unit No. from DD.MM.YYYY No. regarding the indication in it that FULL NAME2 was brought to disciplinary responsibility for “deception of the commander, improper implementation of Art. 359 of the Charter of the Armed Forces of the Armed Forces of the Russian Federation” to declare illegal, and to oblige the official to make amendments to the said order corresponding to this court decision.

In satisfaction of the rest of the application FULL NAME2 refuse.

Collect from the military unit No. at the expense of funds on the personal account of the FBU "Financial Support Department of the Ministry of Defense of the Russian Federation for the Kaliningrad Region", in accordance with Art. 98 Code of Civil Procedure of the Russian Federation in favor of the applicant legal costs associated with the payment of the state fee, in proportion to the satisfied requirements in the amount of 100 rubles.

The decision can be appealed in cassation to the Baltic Naval Military Court through the Kaliningrad Garrison Military Court within 10 days from the date of its adoption in final form.

Authentic with proper signature.

Kaliningrad garrison military court A.E. Borisov

DD.MM.YYYY
Search for information on the portal GAS "PRAVOSUDIE"

original document

Article 28.5.

The military husband did not show up for work for more than 4 hours.

Circumstances taken into account when imposing a disciplinary sanction

(introduced by Federal Law No. 203-FZ of December 4, 2006)

1. When imposing a disciplinary sanction, the nature of the disciplinary offense, the circumstances and consequences of its commission, the form of guilt, the identity of the serviceman or citizen called up for military training who committed the disciplinary offense, circumstances mitigating disciplinary liability and circumstances aggravating disciplinary liability shall be taken into account.

2. By their nature, the following disciplinary offenses are gross:

violation of the statutory rules of relations between military personnel;

unauthorized abandonment of a military unit or a place of military service established outside the military unit by a military serviceman who is doing military service by conscription, or by a citizen called up for military training;

(see text in previous)

failure to appear on time without good reason for service upon dismissal from the location of a military unit or from a ship ashore, upon appointment, transfer, as well as from a business trip, vacation or medical organization;

(as amended by Federal Law No. 317-FZ of November 25, 2013)

(see text in previous)

the absence of a military serviceman under contract in a military unit or a place of military service established outside the military unit without good reason for more than four hours in a row during the established daily service time;

(as amended by Federal Law No. 1-FZ of February 9, 2009)

(see text in previous)

evasion of military service duties;

violation of the rules of carrying combat duty(combat service);

violation of the rules of the border service;

violation of the statutory rules of guard duty;

violation of the statutory rules for internal service;

violation of the statutory rules for patrolling in the garrison;

violation of the rules of service for the protection of public order and ensuring public safety;

intentional destruction, damage, spoilage, illegal expenditure or use of military property;

destruction or damage by negligence of military property;

violation of the rules for saving military property entrusted for official use, which negligently caused its loss or damage;

violation of the rules for handling weapons, ammunition, radioactive materials, explosives or other substances and objects that pose an increased danger to others, military equipment or the rules for the operation of military equipment, which negligently caused harm to human health, destruction, damage or loss of military property, or other harmful consequences;

violation of the rules of management vehicles or their exploitation, which through negligence caused harm to human health, damage to military property or other harmful consequences;

performing the duties of military service in a state of intoxication, as well as the refusal of a serviceman to pass medical examination to the state of intoxication;

non-acceptance by the commander within his competence necessary measures to prevent or suppress a disciplinary offense committed by a serviceman subordinate to him or a citizen called up for military training, to bring a military man or citizen called up for military training to disciplinary liability established by this Federal Law for committing a disciplinary offense or to eliminate the causes and conditions that contributed to its commission, as well as the concealment by the commander of information about the commission by a serviceman subordinate to him or a citizen called up for military training, a crime, an administrative offense or a disciplinary offense;

an administrative offense for which a serviceman or a citizen called up for military training, in accordance with the Code of the Russian Federation on administrative offenses bears disciplinary responsibility;

deliberate damage to a document proving the identity of a serviceman of the Russian Federation (service ID of a serviceman of the bodies specified in paragraph 1 of Article 2 of the Federal Law of March 28, 1998 N 53-FZ "On military duty and military service"), or the loss of an identity document of a serviceman of the Russian Federation (service certificate of a serviceman of the bodies specified in paragraph 1 of Article 2 of the Federal Law of March 28, 1998 N 53-FZ "On military duty and military service"), through negligence;

violation of the rules and requirements establishing the procedure for conducting secret office work;

(the paragraph was introduced by Federal Law No. 20-FZ of February 15, 2016)

violation of the procedure for leaving the Russian Federation;

(the paragraph was introduced by Federal Law No. 20-FZ of February 15, 2016)

violation of the requirements of legislative and other regulatory legal acts of the Russian Federation in the field of intelligence, counterintelligence and operational-search activities, which created conditions for causing damage to the security of the individual, society and the state, or the own security of the bodies engaged in such activities;

(the paragraph was introduced by Federal Law No. 20-FZ of February 15, 2016)

knowingly illegal bringing of a serviceman to disciplinary or material liability;

(the paragraph was introduced by Federal Law No. 20-FZ of February 15, 2016)

violation by the commander (chief) of the requirements for the safety of military service, which led to the death or disability, including temporary disability, of a serviceman and (or) a citizen called up for military training.

(the paragraph was introduced by Federal Law No. 20-FZ of February 15, 2016)

3. Circumstances mitigating disciplinary responsibility are:

repentance of a serviceman or a citizen called up for military training who has committed a disciplinary offense;

voluntary communication by a military man or a citizen called up for military training about a disciplinary offense committed by him to the commander;

prevention by a serviceman or a citizen called up for military training who has committed a disciplinary offense, harmful effects disciplinary offense, voluntary compensation for damage or elimination of harm caused;

commission of a disciplinary offense in a state of strong emotional excitement (affect) or in the event of a combination of difficult personal or family circumstances.

A commander or a judge of a military court who imposes a disciplinary sanction on a serviceman or citizen called up for military training may recognize other circumstances as mitigating.

4. Circumstances aggravating disciplinary liability are recognized:

continuation of the illegal action (inaction), despite the command of the commander to stop it;

repeated commission of the same disciplinary offense, if for the first disciplinary offense a disciplinary sanction has already been applied to a military man or a citizen called up for military training and it is in in due course not removed;

the commission of two or more disciplinary offenses, for none of which a disciplinary sanction was applied to a serviceman or a citizen called up for military training, as well as the commission of one action (inaction) containing signs of two or more disciplinary offenses;

committing a disciplinary offense by a group of military personnel or citizens called up for military training;

committing a disciplinary offense in a state of intoxication.

A judge of a military court applying a disciplinary sanction to a serviceman or a citizen called up for military training, depending on the nature of the committed disciplinary offense, may not recognize any of the circumstances specified in this paragraph as aggravating.

The circumstances specified in this paragraph cannot be taken into account as aggravating if they qualify as a disciplinary offence.

5. If the committed disciplinary offense is insignificant, the commander considering the materials on the disciplinary offense may release the serviceman or citizen called up for military training who has committed the disciplinary offense from disciplinary liability and confine himself to an oral reprimand.

Thank you!read answers (1) Tags: Correctly write an explanatory note Explanatory letter of a police officer other payments if the employee is dismissed from the internal affairs bodies for absenteeism, while the length of service, taking into account service in the emergency zone, is more than 30 years.read answers (1) military service under a contract for more than 10 days if you are on probation?read answers (1) Tags: Criminal liability

What threatens me for not showing up for work up to 10 days?

InfoIf you refuse to give an explanation on the fact of committing a gross disciplinary offense, then they will draw up an appropriate act in which the members of the commission (2 people are enough) will record this with their signatures.

This order must specifically indicate the types, terms and amounts of punishment.

Responsibility for a contractor for absenteeism

Non-compliance with the contract Hello! I am a contract serviceman, I did not visit for about a month before that I wrote a report on non-compliance with the contract on my part.

Today I was in the unit, they threaten to open a criminal case for absenteeism.
Question: Can I be put in jail for absenteeism.

Important What will happen if a criminal case is opened against me? 1. Unauthorized abandonment of a unit or place, as well as failure to appear on time without good reason for service upon dismissal from a unit, upon appointment, transfer, from a business trip, vacation or medical organization lasting more than two days, but not more than ten days, committed by a serviceman passing military service by conscription, - 3.

Failure to appear on time without good reason for military service. Failure to appear on time without good reason for military service is a military crime.

provided for in Art. 19310 UK.

Absence from service under the contract

• Contract failure
• Failure to appear on time without good reason for military service
• Tell me, please, what will be the absence from work for the service under the contract ON THE PROBATION PERIOD?
• Resolution of the Plenum of the Supreme Court of the Russian Federation of April 3, 2008
• Subject: Not dismissed from military service under a contract

TYPES OF LAWYER'S SERVICES PROVIDED: military lawyer, military lawyer - (d "At the request of the Novorossiysk Garrison Military Court to verify the constitutionality of the provisions of part one of Article 331 and Article 337 of the Criminal Code of the Russian Federation in conjunction with the provisions of Article 28 of the Federal Law "On the Status of Military Personnel", paragraph 4 of Article 32, paragraph 11 of Article 38 of the Federal Law "On military duty and military service" and subparagraph "a" of paragraph 9 of Article 4 of the Regulation on the procedure for military service" As follows from the materials presented, I.

The military did not show up for service after his vacation - question No. 32104

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Order documents Contracts, complaints, claims, etc.

Tatyana Kirovo-Chepetsk Good afternoon. A friend's son serves in the army under a contract. The other day he came on vacation.

Document Protection

When he left, it turned out that he did not return to the unit, did not appear at the service - there was a call to his parents. The son does not explain the reasons why he did not go to the service, and the girlfriend is worried about her son, that he can be imprisoned for this.

Article 337 of the Criminal Code of the Russian Federation. unauthorized abandonment of a part or place of service

The commented article provides for several elements of crimes that differ in subject and duration of evasion from service: - unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service, committed by military personnel undergoing military service on conscription, including serving punishment in a disciplinary military unit for a period of more than two days, but not more than 10 days

1, 2), more than 10 days, but not more than one month (part 3), more than one month (part 4); - unauthorized abandonment of a unit or place of service, as well as failure to appear on time without a good reason, committed by military personnel undergoing military service under a contract, for a period of more than 10 days, but not more than one month (part 3), more than one month (part 4 ). 2.

Not dismissed from military service under a contract

• military law
• Hello! I am a contract soldier, I am trying to quit the army due to non-compliance with the terms of the contract, because it did not work out for family reasons (there were two circumstances: 1. my wife is pregnant, and I cannot support the allowance that I receive.
  2. the father is a disabled person of the third group) it didn’t work out to quit .... now I want to quit at least according to the article, I appear in the service once every 10 days ... because of this, the com. Bat scolds harshly, threatens to put him on the “lip”.

Absence from service

Quite possible. Your actions can be qualified in different ways.

But the Criminal Code of the Russian Federation does contain legal norms prohibiting military service evasion: Article 337.

Unauthorized abandonment of a unit or place of service1. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service upon dismissal from a unit, upon appointment, transfer, from a business trip, vacation or medical organization lasting more than two days, but not more than ten days, committed by a serviceman undergoing military conscription service, - shall be punishable by arrest for a term of up to six months, or by detention in a disciplinary military unit for a term of up to one year.
Unauthorized abandonment of a unit or place, as well as failure to appear on time without good reason for service upon dismissal from a unit, upon appointment, transfer, from a business trip, vacation or medical institution lasting more than two days, but not more than ten days, committed by a serviceman undergoing military service on conscription, - 3. Unauthorized abandonment of a unit or place, as well as failure to appear on time without valid reasons for service lasting more than ten days, but not more than one month, committed by a military serviceman undergoing military service on conscription or under a contract, - for a term of up to two years, or by detention in a disciplinary military unit for a term of up to two years, or by deprivation of liberty for a term of up to three years.

The contract for military service with a conscripted military serviceman did not reflect the period during which the serviceman gave an obligation to perform military service under the contract. Considering that by the time the failure to appear in the unit, the defendant had served the established term of military service on conscription, the court concluded that there was no corpus delicti in his actions, recognizing the right to rehabilitation as justified. The court considered that the principle of the presumption of the unity of rights and obligations in resolving this criminal case cannot be applied.

P R I G O V O R

IN THE NAME OF THE RUSSIAN FEDERATION

city ​​of Yekaterinburg (Date removed)

Yekaterinburg garrison military court presided over by Judge Shargorodsky I.G., with secretary E.A. Dubova, with the participation of the state prosecutor - assistant military prosecutor of the Yekaterinburg garrison Major of Justice Sagdeev S.M., defendant L., defense lawyer Valevin A.V. . in open court, considered a criminal case on charges of citizen L. (personal data seized) of committing a crime under part four of Article 337 of the Criminal Code of the Russian Federation.

Judicial investigation military court

INST A N O V&L:

According to the indictment, with the intention to rest, L., contrary to the regulations, by 8:30 am on June 10, 2009, did not appear for service in military unit 00000. Living in Yekaterinburg, he idly spent time at his own discretion. On August 20, 2009, as stated in the indictment, realizing the unlawfulness of the act, L. arrived at the unit and continued his military service. This inaction of the defendant is qualified under part four of Article 337 of the Criminal Code of the Russian Federation.

According to the investigator’s conclusion, this accusation was based on the confession of L. himself, who appeared after arriving at the unit with a confession to the military investigation department for the Yekaterinburg garrison, the testimony of witness A., who informed the investigator during interrogation that in June-August 2009 L. lived with her in Yekaterinburg and did not go to work, the testimony of witnesses K., S., Ch. and P., L.’s colleagues, who testified that the latter did not come to the service from June 10 to August 20, 2009, as well as documents received by the investigator regulating the order of passage of military service, determining the status of L. and characterizing him.

When considering the case at the hearing, L. also pleaded guilty. He testified that on June 10, 2009, not knowing the term of the end of military service and with the intention of earning money for the wedding, he did not appear in the unit. Living in Yekaterinburg, he worked at his own discretion on civil construction sites. He arrived at the service only on August 20, 2009.

The court established that, indeed, from June 10 to August 20, 2009, L. was absent from military unit 61423 and spent all this time at his own discretion. In addition to the testimony of the defendant, this circumstance was confirmed by the testimony of witness A., who reported that in June-August 2009 L. lived with her in Yekaterinburg and did not go to work, as well as the testimony of the latter’s colleagues - witnesses S., Ch. and K. , who reported at the trial that L. was absent from the unit from June 10 to August 20, 2009.

At the same time, the establishment of this circumstance alone is not enough to recognize the act committed by L. as a crime.

In accordance with paragraph two of Article 2 of the Federal Law "On Military Duty and Military Service", military service is carried out by citizens on conscription and on a voluntary basis (under contract).

According to L.'s track record, he began conscription military service on December 2, 2006. The defendant testified in court that it was on that very day that he was sent from the assembly point of the military commissariat ... of the region to the place of military service. On June 7, 2007, as stated in the indictment, L. concluded a contract with the Ministry of Defense of the Russian Federation for military service for a period of three years, taking into account conscription service, and this gave grounds to qualify his failure to appear in the unit from June 10 to August 20 2009 under the fourth article 337 of the Criminal Code of the Russian Federation. Meanwhile, the court considers that the conclusion of the investigating authorities that L. has an obligation to perform military service beyond the period established for military service by conscription is not based on the law.

In accordance with paragraph three of Article 32 of the Federal Law "On military duty and military service", the terms of the contract for military service include the obligation of a citizen to perform military service in the Armed Forces of the Russian Federation, other troops, military units or bodies within the period established by the contract. This term, specified in the military service contract, establishes the term of military service (paragraph one of Article 38 of the same Law). The period during which a citizen undertakes to perform military service is fixed in the contract (paragraphs four and five of Article 4 of the Regulations on the procedure for performing military service and Appendix No. 1 thereto).

From the copy of the contract for military service examined at the court session, stored in the personal file of L., it is clear that when concluding such a standard form between the Ministry of Defense of the Russian Federation represented by the commander of military unit 00000 and L. on June 7, 2007, the period was not indicated , during which the latter undertook to perform military service (for how long, from what time and for what time). At the trial, L. testified that at the conclusion of the contract he signed only on a blank letterhead of a single copy. The second copy of the contract was not issued to him. What was subsequently indicated by the command in the contract, he did not know. From this it follows that the contract signed by L. and the commander of the unit does not fix one of the essential (mandatory) conditions of this contract - the term, which indicates the nullity of such an agreement and excludes the possibility of any negative consequences for L. Moreover, from the testimony of the defendant, it is clear that he did not sign the contract, but only a standard form of such, which was later filled in by other persons, and this statement by L. has not been refuted by anything.

The Court considers that, when signing the form of the contract, L. did not give the obligation to voluntarily perform military service for a period exceeding the mandatory period of conscription military service established by law. This conclusion of the court is not shaken by the statements of the public prosecutor that the contract was concluded on the basis of a report by L. with a request to conclude one for three years and that the conclusion with L.

Disciplinary punishment of a soldier

of the contract on the same day was announced by order of the commander of military unit 00000 No. 000. From the report of L. it can be seen that on May 25, 2007 he asked to conclude a contract with him for military service for three years. Meanwhile, the court believes that the expression of such intention did not exempt the parties from proper observance of the law in the preparation and conclusion of the contract - the exact indication of all essential conditions in it. The mentioned order of the unit commander only announced the conclusion of the contract, which should determine the date of its entry into force upon signing official(paragraph eight of Article 4 of the Regulations), but are not supplemented or changed in any way essential conditions to be fixed exclusively in the contract itself.

As for the provisions of the legislation that a contract is concluded with a military serviceman on conscription, provided that the total duration of his military service on conscription and under the first contract is three years (paragraph four of Article 38 of the Federal Law “On Military Duty and military service ”as amended on March 28, 1998 No. 53-FZ), then this rule determines only the essential conditions on which a contract should be concluded. The absence of these conditions in the contract itself, in the opinion of the court and contrary to the opinion of the public prosecutor, indicates the nullity of such an agreement.

The court also considers the statement of the public prosecutor about the absence of a competent decision to recognize the contract on military service presented in the case file as invalid or to terminate it as pointless. Checking the validity of the charge against L. of failure to appear on time without good reason for the service of a military serviceman serving under a contract, the criminal court resolves all the issues specified in part one of Article 299 of the Code of Criminal Procedure of the Russian Federation, including establishing the legitimacy of the defendant acquiring the status of a serviceman undergoing military service. military service under the contract and the corresponding obligations. As can be seen from the foregoing, he did not accept obligations to perform military service beyond the established term of service at the call of L..

According to subparagraph "a" of paragraph one of Article 38 of the Federal Law "On military duty and military service" for military personnel who do not have military rank officer and called up for military service before January 1, 2007, the term of military service is 24 months. L. began his military service, as mentioned above, on 2 December 2006. Thus, by the time of the alleged failure to appear in military unit 00000, the term of military service of the named person had expired. Since the expiration of this period, he cannot be considered as the subject of a crime against military service, which indicates the absence of corpus delicti. The presence of L. in military service after December 2, 2008 and the issuance of an order to conclude a contract with him in 2007 does not indicate that the defendant has an obligation to perform military service for more than 24 months, but only indicates that he has acquired the right to comply with guarantees, benefits and benefits established by law for military personnel undergoing military service under a contract. The principle of the presumption of the unity of rights and obligations in resolving this criminal case cannot be applied.

Stating that L. ceased to be the subject of a crime against military service after December 2, 2008, the court concludes that it is necessary to find L. innocent of failure to appear on time without good reason for service from June 10, 2009 and his acquittal due to the absence of composition in the act crimes. L.'s confession of guilt in the alleged crime due to the above circumstances does not give the court grounds for making a different decision.

Guided by Articles 302, 305, 306 and 309 of the Code of Criminal Procedure of the Russian Federation, the military court

P I G O V O R I L:

Recognize L. not guilty of committing a crime under part four of Article 337 of the Criminal Code of the Russian Federation, and acquit him of the charge on the basis of paragraph three of part two of Article 302 of the Criminal Procedure Code of the Russian Federation for the absence of corpus delicti in the act.

Recognize for justified L. the right to rehabilitation.

The measure of restraint in relation to L. - supervision of the command of the military unit - should be canceled.

The procedural costs associated with the payment of remuneration to the defense counsel for participation in legal proceedings by appointment, in the amount of 1029 rubles 39 kopecks, shall be reimbursed at the expense of the federal budget.

The verdict can be appealed in cassation to the Ural District Military Court through Yekaterinburg Garrison Military Court within ten days from the date of announcement. In the case of filing a cassation appeal, the acquitted person has the right to petition for his participation in the consideration of the criminal case by the court of cassation.

Judge of Yekaterinburg

garrison military court I.G. Shargorodsky

Federal Law “On the Status of Military Personnel” of May 27, 1998 N 76-FZ Article 28.5 (as amended on August 3, 2018)

Quite possible. Your actions can be qualified in different ways. Additional information is needed for a more accurate assessment.

But the Criminal Code of the Russian Federation does contain legal norms prohibiting military service evasion:

Article 337
1. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time without good reason for service upon dismissal from a unit, upon appointment, transfer, from a business trip, vacation or medical organization for more than two days, but not more than ten days, committed by a serviceman, conscripted military service -
shall be punishable by arrest for a term up to six months, or detention in a disciplinary military unit for a term up to one year.
2. The same deeds committed by a serviceman serving a sentence in a disciplinary military unit, -
shall be punishable by deprivation of liberty for a term of up to two years.
3. Unauthorized abandonment of a unit or place of service, as well as failure to appear on time without valid reasons for service lasting more than ten days, but not more than one month, committed by a military serviceman undergoing military service on conscription or under a contract, -
shall be punishable by restriction in military service for a term of up to two years, or by detention in a disciplinary military unit for a term of up to two years, or by deprivation of liberty for a term of up to three years.
4. Acts provided for by part three of this article, lasting more than one month -
shall be punishable by deprivation of liberty for a term of up to five years.
Note. A serviceman who has committed the deeds provided for by this article for the first time may be released from criminal liability if the unauthorized abandonment of the unit was the result of a combination of difficult circumstances.

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 the same purposes in the service -
shall be punishable by deprivation of liberty for a term of up to seven years.
2. Desertion with a weapon entrusted to the service, as well as desertion committed by a group of persons by prior agreement or by an organized group, -
shall be punishable by deprivation of liberty for a term of up to ten years.
Note. A serviceman who has committed desertion for the first time, as provided for by part one of this article, may be released from criminal liability if the desertion was the result of a combination of difficult circumstances.

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