Defence in a desertion case (Article 338)

What is happening

The key difference between Article 338 and Article 337 is what is alleged: an intention to evade service altogether, rather than an absence of a certain length. That intention does not follow automatically from how long a man was away; it has to be proved. This is why the classification is almost always the central question in a desertion case.

In practice the prosecution often relies on indirect circumstances: the man travelled far, was out of contact, did not report back after leave. Each of those can have another explanation — his state of health, missing documents, fear, requests that went unanswered. We check what exactly is recorded in the file and what supports it.

We do not judge whether our client is guilty and we give no forecasts about the sentence. Our work is to be in the case from the first investigative steps, to test how firm the evidence is, and to see that the circumstances in our client's favour are gathered and considered by the court.

What the law says

• Article 338 describes leaving a unit or failing to report for service with the aim of evading service altogether; without that proved aim, the offence is a different one.
• The classification depends on the period: mobilisation, martial law and active hostilities fall under the graver parts of the article.
• The note to Article 338 of the Criminal Code provides for cases in which a serviceman who left service for the first time because of difficult circumstances may be released from criminal liability; such circumstances are evidenced by documents.
• The case is investigated by the military investigative bodies and heard at first instance by the garrison military court.
• Detention on remand is often raised in these cases, and the defence deals with that question separately from the case itself.
• The accused has the right to a defence advocate from the first interview, the right to see the case file and the right to apply for evidence to be obtained.

What we do

• We enter the case as defence advocates and attend every interview and investigative step involving our client.
• We examine what the alleged aim of evading service rests on and ask the investigator and the court to reclassify where there are grounds for it.
• We collect medical records and documents on wounds, treatment, referrals and any refusal of hospital admission.
• We request orders, reports, leave and posting documents from the unit, and witness evidence about the situation in the sub-unit.
• We apply for interviews and expert examinations, including a military medical board and a forensic psychiatric report where the circumstances point that way.
• We deal with the custody measure and prepare the position for trial, appealing the judgment where there are grounds.

What we need from you

• Service documents: the contract, extracts from orders, a certificate of service, posting documents.
• Rulings, records of interview and summonses from the investigator, and a copy of the charging documents.
• Medical records: discharge papers, referrals, medical opinions, documents on wounds and treatment.
• Documents on leave, treatment or any other lawful ground for the absence, where these were issued.
• Reports and requests to the command bearing a receipt stamp, together with any replies.
• Details of family and dependants, character references, records of any decorations.