The Essence of Desertion
Article 389 of the Criminal Code of Georgia treats desertion as the gravest form of evading military service: the crime consists in a serviceman or a serviceman of reserve military service leaving a military unit or another place of service without permission, or failing to report for service, with the aim of evading military or reserve military service. The decisive element is the aim: it is precisely the intention to evade that distinguishes desertion from other violations of service rules, and the prosecution must establish this aim with evidence.
In practice, disputes revolve around the aim itself: a person may have left the unit because of health, family or another circumstance, which does not amount to an intention to evade. In such cases the classification shifts to other norms, and the task of the defence is to establish the real motive and circumstances. The circle of subjects is also defined: only a serviceman or a serviceman of reserve military service can be the perpetrator of this crime, and the prosecution must establish precisely this status.
Penalties Under the Parts
Under the basic composition, desertion is punished by imprisonment for a term of three to seven years. The second part aggravates liability for two cases: where the act is committed with a weapon entrusted for official use, and where it is committed by a group — in both cases the penalty is imprisonment for a term of five to ten years. These measures are formulated as separate parts, and their merger or consolidation is impermissible.
The Exempting Note and the Defence Perspective
The article carries a note: a serviceman or a serviceman of reserve military service who commits for the first time the act envisaged by the first part may be released from criminal liability if the desertion was caused by grave circumstances. This rule is one of the most important instruments of the defence: grave circumstances — illness, a crisis in the family and similar conditions — must be substantiated with documents and motivation, because the assertion alone, without a documentary basis, does not satisfy the court.
Other directions of the defence include putting the element of aim in doubt, verifying the features of the weapon and of the group, and monitoring the procedural requirements established by other norms of the process. In court practice a properly built defence often moves the case from the second part to the first, and sometimes to a full release from liability. The collection of case materials begins early for a reason: medical records, health certificates, evidence of family circumstances and service correspondence together form the picture on which the court decides whether grave circumstances were real, and a documentary trail can rarely be reconstructed later. The timing of the return to the unit and the person's conduct during the absence — whether they maintained contact, tried to justify themselves or hid — are also weighed, because these details show the presence or absence of an aim of evasion more convincingly than any formal indicator.
Along the boundaries of the classification, three questions deserve attention. The first boundary runs between the aim of evasion and the interpretation of a temporary departure: the same fact — leaving the unit — is assessed entirely differently depending on the aim, and an aim is an inner intention rarely established by direct evidence, so the court reconstructs it from the totality of circumstances. The second boundary concerns the elements of the composition: absence and unauthorized departure are formulated in the law as alternatives, and the prosecution must establish which form was realized. The third boundary touches the aggravating features — the entrustment of the weapon for official use and the group commission must be described in the charge separately, otherwise the second part cannot be applied.
Frequently Asked Questions
What distinguishes desertion from other service violations?
The aim of evasion: leaving a unit without permission or failing to report counts as desertion only when carried out with the intention of evading military or reserve military service.
What penalty is provided for desertion?
Under the basic composition — imprisonment of three to seven years; when committed with a weapon entrusted for official use or by a group — five to ten years.
Is release from liability possible?
Yes — for a first-time act under the first part, if the desertion was caused by grave circumstances; this must be substantiated and is a principal direction of the defence.
What does the defence examine first?
The real substance of the aim, the features of the weapon and the group, and the grounds of the exempting note — each of them directly changes the classification.
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