A new period of evolution of the system of crimes against military service

Danilov Petr Sergeevich ORCID: 0000-0003-4142-104X PhD in Law Senior lecturer, Department of Criminal Law and Criminology, Omsk State University named after F.M. Dostoevsky 644065, Russia, Omsk region, Omsk, ul. 50 Years of Trade Unions, 100/1, office 315 fighterwithgun@mail.ru

Senokosova Ekaterina Konstantinovna PhD in Law Senior lecturer, Department of Criminal Law and Criminology, Omsk State University named after F.M. Dostoevsky 644065, Russia, Omsk region, Omsk, ul. 50 Years of Trade Unions, 100/1, office 315 ekaterina.senokosova@inbox.ru

Introduction

The need to introduce criminal liability for the commission of crimes encroaching on legal relations arising in connection with the performance or passage of military service has long been known to the domestic legislator.

In general, for a long time of the existence of the Fatherland, there was an understanding that military service and service in order to protect the state from external and internal enemies are paramount. The country has always needed combat-ready and combat-ready armed forces that can defend its sovereignty, for which, among other things, a criminal law mechanism is being developed to ensure that military personnel fulfill their duties. The latter involves the adoption of criminal law norms on crimes against military service.

At the same time, such norms are not isolated and should be interconnected to represent an integral system, inextricably linked with the system of public relations, which they are designed to protect.

Currently, the relevance and significance of the studied problem is even more obvious. So, firstly, the ways, methods of performing tasks and weapons used in the Armed Forces of the Russian Federation are changing, and secondly, if earlier military personnel were more often involved in military exercises, disaster relief, ensuring the regime of counter-terrorism operations, the destruction of illegal armed formations and terrorist organizations, today military personnel perform combat tasks in the course of a special military operation, protecting the constitutional system of the Russian Federation, thirdly, military legislation is rapidly changing and new relations are emerging that need criminal law protection, fourthly, criminal law cannot afford to lag behind all the above changes, but must also take into account all domestic historical experience, otherwise the repetition of the mistakes of the past is inevitable.

In this regard, the object of research in this article is the system of crimes against military service, fixed both in the current criminal law and in domestic criminal laws that have lost their force, as well as the system-forming criterion for constructing the system in question in the form of time and the situation of the objective side of crimes against military service, which is more detailed by the authors on the basis of a systematic approach set out below.

In general, in the science of criminal law, the works of H.M. Akhmetshin, I.Y. Bely, V.I. Boev, F.S. Brazhnik, A.G. Gorny, Y.V. Golik, Ya.N. Ermolovich, R.V. Zakomoldin, O.K. Zatelepin, I.I. Israilov, A.V. Kudashkin are devoted to the problems of responsibility of military personnel and crimes against military service, M.A. Kudinova, S.M. Malkova, N.A. Petukhov, V.I. Plokhova, P.S. Romashkina, A.A. Ter-Akopova, V.M. Chkhikvadze, N.A. Shulepova, V.P. Shuplenkov and many other scientists. In the new period of the evolution of the system of crimes against military service, there are works, in particular, by such scientists as P.V. Agapov, A.A. Ageshin, A.Yu. Vinokurov, V.V. Vlasenko, Ya.N. Ermolovich, R.V. Zakomoldin, V.V. Merkuryev, E.A. Morgulenko, M.A. Myalitsyna, M.G. Reshnyak.

However, scientists consider general issues of responsibility for crimes against military service, certain types of these criminal acts or elements of the composition of these crimes, the problems of criminality of military personnel, crimes against military security and crimes committed during wartime. Crimes against military service are considered by most scientists not as an integral system, but isolated from each other and from other types of crimes, not seeing their connection with other institutions of criminal law. Meanwhile, in science, separate amendments to the criminal law are proposed, which should be linked together and linked to the basis that underlies the entire system of crimes against military service.

In this study, the norms of the criminal law on crimes against military service are studied from the point of view of a systematic approach. The authors continue to consider these norms precisely as a system based on the criteria for its construction. The paper not only states that the legislator made special changes to the criminal law regarding the introduction of criminal liability in wartime, but that the system in question has received qualitative development, its system-forming criteria and structure have changed. This is not an ordinary change in the system of crimes against military service, but a significant and extraordinary one, entailing far-reaching consequences both for it and for the entire criminal law.

Methodology

To understand the course of the study, it is necessary to state the main positions regarding the methodology used.

In conducting this study, the authors were guided by a systematic approach representing a special direction of cognition, which is based on the statement that all phenomena are systems (single integral aggregates of elements that are in relationships and connections with each other) ^{[1, pp. 559-560]}.

Within the framework of this approach, attention is focused on the internal structure of the system, its subsystems and elements, the connections and properties that arise between its elements, the interaction of the system and the environment, the search for its place and ways to influence the system (system management) ^[2-5] (Garanina M.A. System of crimes against justice: formation and development: dis. ... cand. jurid. M., 1995. pp. 14-15).

At the same time, the systematic approach, according to the fair statement of I.V. Blauberg, is based on the following principles: 1) the system is considered as an integral entity that has elements and opposes the environment; 2) the integrity of the system is concretized through the prism of system-forming connections; 3) the system is ordered through the concepts of structure and organization; 4) the structure is characterized horizontally and vertically; 5) management is a specific way of regulating hierarchy; 6) the system is expedient; 7) the sources of transformation lie within the system itself; 8) systems function and develop (Blauberg I.V. Philosophical and methodological problems of system research: dis. ...Dr. Philos. M., 1983. pp. 107-110).

In addition, the system is not limited to the features of its elements, but is rooted in the nature of the connections and relationships between them, is a whole, concrete object with integrative properties, meaning that it is not just the sum of its parts, but has a certain property that does not follow from the properties of the elements, and also in relation to the system there is always a suprasystem or supersystem that includes the system under study (Blauberg I.V. Philosophical and methodological problems of system research: dis. ...Dr. Philos. M., 1983. pp. 43-44).

At the same time, it is important that the elements forming the system correlate with each other, responding to the rule that one element cannot simultaneously be a subsystem of another element of the entire system ^{[6, p. 204]}.

Moreover, all systems can be divided into natural and artificial ^{[7, 8]}, which affects both systems and approaches to their study. The system of crimes against military service is undoubtedly artificial, since it can function only within the framework of a system of law created by man. The legislator, taking into account the nature of social relations developing in the military service, manages the structure of this system, changing the connections and interdependencies within it.

In general, it follows from the above that the system approach pays attention not to the specific structure of the system, but to the connections (relationships) between its components. Important are the properties, relationships, criteria that influence which elements are included in the system and which remain "overboard".

Of course, the authors did not limit themselves to a systematic approach and turned to proven general scientific methods (for example, analysis, synthesis, deduction, induction, classification, systematization) and private scientific methods (in particular, historical-legal, formal-legal).

Thanks to a systematic approach and other scientific methods, the norms on crimes against military service are modeled by the authors into an integral system of such crimes, which includes subsystems and elements that are in certain relationships with each other and included in it on the basis of system-forming criteria.

Formation and development of the system of crimes against military service

The emergence of norms in domestic legislation on crimes against military service and, as a result, the creation of a system of such crimes became possible due to the formation of the legislator's understanding of the need for criminal law protection of relations developing in the spheres of military service and the military interests of the state ^{[9, pp. 123-132]}.

The first serious step was to ban the custom of departure and understand it as treason ^{[9, 10, 11]}. Then, due to the special significance of certain relations in military service, criminal liability was introduced, for example, for violating the rules of the guard service for the protection of the borders of the state (the Boyar verdict on the village and guard service of 1571) ^{[12, p. 2-5]}, failure to appear for military service and desertion of nobles, children of boyars and other military service (Articles 13 and 15 of the Verdict of the Zemsky Sobor of the First Militia of June 30, 1611) ^{[13, pp. 47-48]}.

However, a little later, a system of crimes against military service was built, the norms of which were contained in Chapter 7 "On the service of all military people of the Moscow State" of the Cathedral Code of 1649 ^{[13, pp. 93-97]} and the Charter of Military, Pushkar and other cases concerning military science in 1621. (The ancient military Charter of military, Pushkar and other matters related to military science, consisting of 663 decrees or articles, during the reign of Tsars and Grand Dukes Vasily Ioannovich Shuisky and Mikhail Fedorovich, Autocrats of All Russia, in 1607 and 1621. Part II and the last. St. Petersburg, 1781. pp. 47-57).

At the same time, the analysis of the provisions of these sources allowed us to conclude that the system of crimes against military service of that period was based on three system criteria - the object of the crime, the subject of the crime, the time and situation of the objective side of the crime ^{[14, pp. 90-91]}.

Within the framework of this study, the last criterion for constructing a system of crimes against military service is of interest. So, all these crimes were united in the system by the fact that they could be committed only in wartime, as well as in the situation of a campaign, a "hail attack", a siege, that is, fighting. For example, escape from service, murder, violence and robbery of civilians, escape from the battlefield and treason by escaping to the enemy and providing information to the enemy, unauthorized departure for robbery or loot, the absence of a gunner at the cannon during service were criminally punishable.

Subsequently, the legislator, taking into account the reform of the army by creating regular troops that exist both in wartime and in peacetime, abandoned the specified criterion for building a system of crimes against military service, as indicated by the analysis of sources such as the Military Article of 1715 ^{[15, pp. 333-352]} and the Naval Charter of 1720 ^{[16, p. 467-525]}, as well as the Military Regulations on Punishments of the Code of Military Regulations of 1869 (Code of Military Regulations of 1869. Part Six: Military Criminal Statutes. Ed. 2-E. St. Petersburg, 1879. pp. 21-57) and the Naval Statute on Punishments of the Code of Naval Regulations of 1867 (Code of Naval Regulations. Book Sixteen: Naval Regulations on Punishments. Ed. 1886. St. Petersburg, 1887. pp. 36-93).

The exclusion of this system-forming criterion made it possible to expand the system of crimes against military service by including in it the elements of crimes, the norms of which could be applied simultaneously in peacetime and wartime. However, there was also a place for special military formations, for example, subsystems of violations of service duties during military operations and crimes and misdemeanors committed in areas declared under martial law, as well as military treasonous crimes and violations of the laws and customs of war were included in the system under study.

In Soviet law, they did not forget the truth, which was known long before the formation of the new statehood, that "the activity of the army is manifested in the so-called military actions of it. This is the main and even the only purpose of the army" ^{[9, p. 25]}. Taking into account the situation developing in the conditions of the birth of the Soviet state, the legislator reformed the system of crimes against military service and returned the system-forming criterion for this system in the form of time and the situation of the objective side of the crime. Thus, crimes against military service could be committed only in the context of hostilities, war and the conquests of the revolution, which was indicated in article 1 of the Regulations on Revolutionary Military Tribunals of 1919. (Collection of Laws of the RSFSR. 1919. No. 58, Article 549).

With the strengthening of Soviet statehood, this criterion was eliminated, and the system of crimes against military service was expanded again by including peacetime compositions in it, as evidenced by the analysis of the criminal codes of the RSFSR of 1922 (Collection of Laws of the RSFSR. 1922. No. 15, Article 153), 1926. (Collection of laws of the RSFSR. 1926. No. 80, Article 600) and 1960. (Vedomosti of the Supreme Soviet of the RSFSR. 1960. No. 40, article 591). However, the compositions of wartime were also developed. Finally , according to the Criminal Code of the RSFSR in 1960 , the system under study included:

"1) crimes against the order of subordination and military honor;

2) crimes of evasion from military service;

3) crimes causing damage to military property or violating the order of its operation;

4) crimes violating special rules of military service;

5) official crimes;

6) crimes involving the disclosure of military secrets;

7) crimes committed in the area of military operations or in a combat situation;

8) crimes committed while in captivity;

9) crimes violating international conventions" ^{[17, pp. 472-473]}.

For the third time in the entire history of its development, the system of crimes against military service is again based on the system criterion of the time of the objective side of crimes with the adoption of the Criminal Code of the Russian Federation of 1996 (Criminal Code of the Russian Federation) (Collection of Legislation of the Russian Federation. 1996. No. 25, article 2954).

At the same time, it is no longer wartime that prevails, but peacetime. The elements of crimes against military service of wartime were excluded from the system. The basic idea that the concepts of "wartime" and "fighting" go side by side with the system of crimes against military service, are the "cornerstone", was rejected.

An attempt to introduce a draft federal law No. 130883-3, which proposed to return the criminal responsibility of military personnel in wartime, was unsuccessful (Official website of the State Duma of the Federal Assembly of the Russian Federation. URL: https://sozd.duma.gov.ru/bill/130883-3). In turn, the science of criminal law criticized the decision of the legislator adopted in the Criminal Code of the Russian Federation ^{[18, pp. 230-231]}.

A new period of evolution of the system of crimes against military service

With the entry into force of Federal Law No. 365-FZ dated 24.09.2022 "On Amendments to the Criminal Code of the Russian Federation and Article 151 of the Criminal Procedure Code of the Russian Federation" (Collection of Legislation of the Russian Federation. 2022. No. 39, Article 6535) in the emerging modern realities ^{[19, pp. 7-8]}, historical justice has not only been restored, but a new period of evolution of the system of crimes against military service has been marked, since the composition of its system-forming criteria has changed.

The legislator took a step towards the logical development of the system of crimes against military service by removing the system-forming sign of the time of the objective side of the crime. The gap between the legal field and the actual state began to be overcome.

The exclusion of this system-forming criterion allowed both to expand certain elements of crimes against military service due to particularly qualifying signs of wartime, periods of martial law and mobilization, conditions of armed conflict and warfare, and to provide for new compositions of refusal to participate in military or combat operations (Part 2.1 of Article 332 of the Criminal Code of the Russian Federation) and voluntary surrender captivity (Article 352.1 of the Criminal Code of the Russian Federation) ^[20-22].

Thus, the system of crimes against military service has been supplemented with a new subsystem of military treasonous crimes, but in a limited form, since it contains only the composition of voluntary surrender. Refusal to participate in military or combat operations is attributed to the subsystem of crimes against the established order of statutory relations between military personnel (in terms of the established order of subordination), although it seems to have signs of a military treasonous crime.

The judiciary is not lagging behind, in particular, the resolution of the Plenum of the Supreme Court of the Russian Federation No. 11 of 18.05.2023 "On the practice of consideration by courts of criminal cases of crimes against military service" was adopted (Rossiyskaya Gazeta. 2023. June 2), which not only answers the questions of qualification and definition of specific terms, but also introduces a classification of crimes against military service, in which voluntary surrender includes "crimes against the order of military service in special periods."

In the new period of its development, the system of crimes against military service according to Article 331 of the Criminal Code of the Russian Federation is based only on the characteristics of the object and subject of the crime, includes elements of peacetime and wartime, which, based on a systematic approach, opens up space for ways to improve it and the development of the entire system of criminal legislation, since the systematic methodology allows you to establish the potential, embedded in the system for its development. In particular:

firstly, in the science of criminal law, it is noted that the subject of crimes against military service needs progress, which can be expanded at the expense of all persons to whom the status of military personnel applies ^{[23, p. 79]}, including volunteers ^[24].

However, a systematic idea of the interdependence of the object and subject of crimes against military service seems fair and accurate. If the object of such crimes is the established procedure for military service, then the subject must be a person who is not covered by the status of a serviceman, but a person who has such a status in full due to his military service. In turn, military legislation on the basis of the principle of consistency should already contain a closed list of persons who have this status;

Secondly, it is necessary to continue the practice of introducing qualifying signs of special time and situation into the norms on specific elements of crimes against military service. So, if their establishment in Articles 349-352 of the Criminal Code of the Russian Federation is quite controversial, because in conditions of war and combat, a reasonable (and sometimes risky) initiative is needed in the use of entrusted weapons and military equipment, and strengthening criminal responsibility can eliminate the initiative among the personnel. However, it seems that the inclusion of such features in the compositions is justified:

- Articles 335 and 336 of the Criminal Code of the Russian Federation, which are aimed at protecting military discipline and relations developing between "equal" servicemen (in the absence of subordination relations), since in wartime and conditions of warfare it is especially important to protect the emerging "combat brotherhood", trusting relationships among personnel and "shoulder feeling", as well as strictly punish for undermining such relationships;

- Article 345 of the Criminal Code of the Russian Federation, aimed at protecting relations arising in the conditions of the struggle for the survivability of a warship associated with the preservation of a warship in the Navy of the Russian Federation, the loss of which in wartime and during an armed conflict can be comparable to the loss of a company, battalion or even a regiment (depending on the class of a warship) and lead to the disruption of the execution of a combat mission, defeat in certain areas of the theater of operations;

Thirdly, the legislator may pay attention to the possibility of including new elements in the system of crimes against military service.

In science, for example, N.A. Shulepov, O.K. Zatelepin, A.Y. Vinokurov propose to introduce criminal liability for abandoning the means of warfare to the enemy and criminal behavior in captivity, as well as for abandoning the battlefield and refusing to act with weapons ^[25-27]. However, if one can agree with the first two proposals, then abandonment of the battlefield and refusal to act with weapons are fully covered by unauthorized abandonment of the duty station (Article 337 of the Criminal Code of the Russian Federation), desertion (Article 338 of the Criminal Code of the Russian Federation) and refusal to participate in hostilities (Part 2.1 of Article 332 of the Criminal Code of the Russian Federation), respectively.

Controversial, but noteworthy precisely because of the understanding of crimes against military service as an integral system, the development of its subsystem of crimes against the established order of statutory relations between military personnel is seen (Articles 332 - 336 of the Criminal Code of the Russian Federation). Thus, by virtue of Part one of the Charter of the Internal Service of the Armed Forces of the Russian Federation, statutory relations between military personnel are carried out "from top to bottom", "from bottom to top", as well as in the absence of subordination (Decree of the President of the Russian Federation of 10.11.2007 No. 1495 "On approval of the general military Charters of the Armed Forces of the Russian Federation" // Collection of Legislation of the Russian Federation. 2007. No. 47 (1 part), article 5749).

However, the above-mentioned subsystem of crimes does not take this into account and is incomplete due to the lack of sufficient elements aimed at protecting relationships implemented "from top to bottom" (there is only Part 2 of Article 336 of the Criminal Code of the Russian Federation prohibiting insulting a subordinate by a superior).

On the basis of a systematic approach, which provides that the potential for the development of the system lies in itself, it is fair to agree with scientists who propose to criminalize the giving of a deliberately illegal order ^{[26, p. 58]} and violent actions against a subordinate (Mekenya A.A. Criminal-legal characteristics of abuse of official authority in conditions of military service: dis. ... cand. jurid. M., 2010. pp. 14-15);

Fourth, taking into account the interrelation of the system of crimes against military service with both other crime systems and the General Part of the Criminal Code of the Russian Federation, it is necessary to pay attention to the remaining norms of the criminal law. Thus, the mentioned Federal Law No. 365-FZ of 09/24/2022 supplemented the norms on aggravating circumstances, the period of mobilization, martial law, wartime, conditions of warfare and introduced criminal liability for violations in the field of state defense orders, thereby improving other crime systems ^{[28, pp. 26-28]}. Previously, there were also other novelties, for example, the introduction of criminal liability for defecting to the enemy, cooperation on a confidential basis with a foreign state, international or foreign organization ^{[29, pp. 89-91]}, etc.

This practice can be continued by introducing into certain articles of the Special Part of the Criminal Code of the Russian Federation, establishing responsibility for crimes against the person, property, official crimes, especially qualifying signs of wartime and martial law, which will allow to tighten the sanctions of these articles accordingly, in which there is no life imprisonment.

Also, according to the authors, it is advisable to expand Article 286.1 of the Criminal Code of the Russian Federation "Non-fulfillment of an order by an employee of an internal affairs body" by extending it to other officials, and not only employees of internal affairs bodies, for example, to employees of the Ministry of Emergency Situations of Russia, the Federal Penitentiary Service of Russia and other services who do not have the status of a serviceman, but may be involved to perform tasks and functions in areas where martial law has been imposed.

The issue of establishing a delay in the execution of the sentence until the end of the period of conducting military operations can be resolved, for which, as noted in science, there is a positive historical experience ^{[27, p. 16]}. It is advisable to allow those convicted of crimes of small and medium severity to postpone the execution of the sentence if they agree to continue participating in hostilities, and the analysis of the identity of the perpetrator allows us to assert that the person will conscientiously perform military duty.

In addition, in the science of criminal law, M.A. Myalitsyna proposes to clarify Article 328 of the Criminal Code of the Russian Federation, providing for liability for evasion from mobilization ^{[30, p. 487]}. Although V.V. Merkuryev, P.V. Agapov and R.V. Zakomoldin, on the contrary, believe that Article 328 of the Criminal Code of the Russian Federation in the current version is quite capable of solving this problem ^[31], which we can agree with, based on the fact that this provision of the Criminal Code criminalizes evasion of conscription in the absence of legal grounds for exemption from this service, and mobilization involves conscription of citizens for military service, which is provided for in Article 17 of Federal Law No. 31-FZ of 26.02.1997 "On Mobilization training and mobilization in the Russian Federation" (Collection of Legislation of the Russian Federation. 1997. No. 9, article 1014).

Conclusion

Thanks to the systematic approach, it is possible to assert that on 09/24/2022 there was not an ordinary change in the system of crimes against military service, but a significant and extraordinary one: a new period of evolution has come for this system. Changes in its system-forming criteria made it possible to supplement it with new subsystem and elements, to develop the elements of crimes contained in it.

The decision of the legislator to exclude the system-forming feature of the time of the objective side from the basis of the system of crimes against military service is fair, which is confirmed by the history of its development and the essence of the relations for the protection of which it exists. The most difficult first step has been taken, which opens up many options for the further development of both the system of crimes against military service itself and criminal legislation in general.

The system of crimes against military service in the new period of its evolution contains the potential for improving the system-forming criteria, subsystems and elements, related systems that are institutions of criminal law related to the Special and General parts of the Criminal Code of the Russian Federation. The mutual influence of the system of crimes against military service and the system of military legislation is not excluded.

The science of criminal law should not ignore the "open door", which provides access to various options for improving the studied system in particular and the entire criminal legislation in general. Some scientists have already proposed such options, for example, as expanding the range of subjects of crimes against military service to persons who are subject to the status of military personnel; introducing criminal liability for abandoning the means of warfare to the enemy, criminal behavior in captivity, abandoning the battlefield, refusing to act with weapons, and earlier – for giving a deliberately illegal order and violent actions in relation to a subordinate; establishment of the institution of postponement of execution of the sentence until the end of the period of conducting military operations; resolution of the issue of responsibility for evading mobilization. In addition, it is advisable to continue the practice of introducing qualifying signs of special time and situation into the proposed compositions of crimes against military service (Articles 335, 336, 345 of the Criminal Code of the Russian Federation) and separate articles of the Special Part of the Criminal Code of the Russian Federation establishing responsibility for crimes against the person, property, official crimes, as well as to expand Article 286.1 of the Criminal Code by its distribution to employees of other services who may be involved in performing tasks and functions in areas where martial law has been imposed.

Thus, at present, the system of crimes against military service has entered a new period of evolution, suggesting the need for its further improvement and development.