Failure to execute an order
1. Failure by a subordinate to comply with an order from a superior given in the prescribed manner, which caused significant harm to the interests of the service,
is punishable by restriction in military service for a term of up to two years, or by arrest for a term of up to six months, or by detention in a disciplinary military unit for a term of up to two years.
2. The same act, committed by a group of persons, a group of persons by prior conspiracy or an organized group, and equally entailing grave consequences, -
is punishable by imprisonment for a term of up to five years.
3. Failure to execute an order due to a careless or dishonest attitude towards service, resulting in grave consequences, -
shall be punishable by restriction in military service for a term of up to one year, or by arrest for a term of up to six months, or by detention in a disciplinary military unit for a term of up to two years.
What should a commander (chief) do if a serviceman does not comply with his lawful order?
What should a commander (chief) do if a serviceman does not comply with his lawful order?
Colonel of Justice, Head of the Department of Theory, State History and International Law of the Military University, Candidate of Philosophical Sciences, Associate Professor; captain, student of the Military Law Faculty of the Military University
One of the basic principles of the construction of the Armed Forces of the Russian Federation, their leadership and the relationship between military personnel is the principle of unity of command. The foundations of unity of command are expressed in the right of the commander to make decisions individually, give appropriate orders and ensure their implementation, and the duty of the serviceman to obey unquestioningly. Discussion of an order is unacceptable, and disobedience or other failure to comply with an order is a military crime (Article 30 of the Internal Service Charter of the Armed Forces of the Russian Federation[1]).
An order is an order from a commander addressed to subordinates and requiring the mandatory performance of certain actions, compliance with certain rules, or establishing some kind of order or regulation.
An order can be given in writing, orally or via technical means of communication to one or a group of military personnel. The legality of an order means that it must comply with the requirements of laws, military regulations, and be given in order and in the interests of the service. Part 3 of Article 36 of the Law of the Russian Federation “On Military Duty and Military Service” establishes that a serviceman cannot be given orders and instructions that are not related to military service and aimed at violating the law. But, according to Articles 34, 35 and 41 of the Criminal Code of the Armed Forces, an order may relate not only to official activities, but also to the behavior of a serviceman outside of duty, in a public place.
In case of failure to comply with an order by a subordinate, the commander is obliged to take all established coercive measures, up to the arrest of the culprit and bringing him to criminal responsibility, and weapons can be used in exceptional cases. Failure to comply with an order is a dangerous violation of the chain of command.
What punishments and measures of influence are provided for failure to comply with an order? We can find the answers in the Criminal Code of the Russian Federation (entered into force on January 1, 1997), the Internal Service Charter and the Disciplinary Charter of the Armed Forces of the Russian Federation, orders of the Minister of Defense of 1985 No. 87 “On the responsibility of military builders for crimes and administrative offenses” , from 1988 No. 38 “On strengthening the rule of law in administrative activities in the army and navy”, orders of the Minister of Defense of the Russian Federation from 1993 No. 000, from 1997 No. 000, Review of judicial practice of the Supreme Court of the Russian Federation for 1996 (on criminal cases), Review of cassation and supervisory practice of the Military Collegium of the Supreme Court for 1996, as well as using textbooks (“Criminal Law”; Military Institute, 1985; “Criminology”, edited by Dolgova, Infra-M., 1997).
1. First, let's consider the exceptional measure of using weapons. Part 3 of Article 1 of the Law of the Russian Federation “On the Status of Military Personnel” determines that a serviceman has the right to use weapons in the manner and on the grounds established by the legislation of the Russian Federation and the general military regulations of the Armed Forces of the Russian Federation. Some military leaders are quite satisfied with this formulation without any additions, and therefore there are cases when, in peacetime, our commanders themselves grabbed a pistol or opened weapons rooms and armed soldiers with the aim of using weapons to restore statutory order and discipline.
But according to Article 9 of the DU of the Armed Forces and part 5 of Article 11 of the DU of the Armed Forces, the use of weapons by the commander personally or his order to use weapons to restore discipline and order in the event of open disobedience of a subordinate is possible only in a combat situation, when the actions of the subordinate are aimed at disrupting the combat mission, and in peacetime conditions - when the actions of a subordinate are aimed at treason against the Motherland. The use of weapons in peaceful conditions is also possible in the cases specified in Part 3 of Article 11 of the Supreme Court of the Armed Forces, namely:
- repelling a group or armed attack on protected military or government facilities, as well as on the location of military units and subunits, buildings and structures of military units, military echelons, convoys of vehicles and individual vehicles and guards, if it is impossible to protect them by other means and means;
- to suppress attempts to forcibly seize weapons and military equipment, if it is impossible to protect them by other means;
- to protect military personnel and civilians from an attack that threatens their life or health, if it is impossible to protect them by other means;
- to detain a person who has committed a crime or was caught committing a serious and dangerous crime, who offers armed resistance, as well as an armed person who refuses to comply with legal requirements to surrender weapons, if it is impossible to suppress the resistance by other means, detain the criminal or seize the weapon.
In any case, the use of a weapon must be preceded by a warning about the intention to use it.
Thus, it is clear that the commander has few reasons to use weapons against disobedient military personnel, and every case of use of weapons is subject to administrative investigation. But in the event of open disobedience by the majority of military personnel, which threatens to develop into resistance, a weapon can be used to sound an alarm or call for help (i.e., shoot upward), in accordance with Part 2 of Article 12 of the Armed Forces of the Armed Forces.
2. For failure to comply with an order, Article 332 of the Criminal Code of the Russian Federation provides for criminal liability.
Intentional and careless failure to comply with an order is possible. Deliberate failure to comply with a superior's order can be expressed in open disobedience or in the external acceptance of the order, in its deliberate actual failure to comply. A form of intentional non-execution of an order can be the commission of actions prohibited by the order, as well as other untimely or incomplete execution of an order, which in fact turned out to be intentionally non-executed.
Only intentional failure to comply with an order that causes significant harm to the interests of the service is criminally punishable. Harm can be physical, property or organizational. Significant harm should be understood primarily as harm that affects the essence of military relations of subordination (undermining military discipline, provoking other military personnel to not carry out orders, falling in the authority of the superior, etc.). Physical harm can be expressed in harm to human health, and property harm can be expressed in damage to a military unit, military equipment, or other property.
For committing a crime specified in Part 1 of Article 332 of the Criminal Code of the Russian Federation, punishments are provided for military personnel performing military service under a contract - in the form of a restriction on military service[2] for a period of up to two years, for military personnel undergoing military service on conscription - in the form of detention in a disciplinary military unit for a period of up to two years or arrest for a period of up to six months for all military personnel.
Failure to comply with an order, committed by a group of persons, a group of persons by prior conspiracy, or an organized group, as well as resulting in grave consequences, is punishable by imprisonment for a term of up to five years (Part 2 of Article 332 of the Criminal Code of the Russian Federation).
Grave consequences may include: causing death by negligence, intentionally causing moderate harm to health, as well as more dangerous consequences for people, additionally qualified under the articles of the chapter on crimes against life and health. Severe consequences may include disruption of measures to ensure combat readiness, disablement of military equipment, causing significant material damage, etc.
Criminal liability for unintentional failure to comply with an order occurs for offenses that entail grave consequences. This crime is punishable by restriction in military service for a period of up to one year, or arrest for a period of three to six months, or detention in a disciplinary military unit for a period of up to two years (Part 3 of Article 332 of the Criminal Code of the Russian Federation).
3. Other failure to comply with an order is punishable in the manner prescribed by the Administration of the Armed Forces of the Russian Federation. The severity of the punishment depends on the severity of the offense committed, the military rank and position of the commander applying the disciplinary sanction and the military rank of the offender.
Penalties may be imposed on private and non-commissioned military personnel as provided for in Articles 51-53 of the RF Armed Forces Administration: from reprimand to arrest, with detention in a guardhouse for up to 10 days (for military personnel serving under a contract - up to 7 days) and dismissal to the reserve of military personnel undergoing military service under a contract.
Ensigns and midshipmen may be subject to penalties provided for in Article 62 of the RF Armed Forces Administration, from a reprimand to arrest with detention in a guardhouse for up to 5 days and until early transfer to the reserve. Moreover, arrest can be applied to military personnel only in case of open disobedience (Part 2 of Article 9 of the RF Armed Forces Administration).
Officers may be subject to penalties provided for in Article 69 of the RF Armed Forces Administration, namely: reprimand, severe reprimand, warning of incomplete performance, demotion, early transfer to the reserve of officers from deputy regiment commanders, senior assistant commanders of ships of rank 1 and below.
The imposition of a disciplinary sanction must be preceded by proceedings to establish the causes and conditions that contributed to the commission of this offense.
Based on the foregoing, the order of actions of a commander in the event of failure to comply with an order by his subordinates must be differentiated in each specific case, depending on the personality of the offender and his military rank. If the offense is committed by privates, sergeants or petty officers, then the order of action of the commander should be as follows:
1. Assess the gravity of the commission of this offense and take, if necessary, urgent measures:
a) removal of a serviceman from duty;
b) the immediate arrest of a serviceman must be carried out in the following cases:
- if the serviceman’s offense contains elements of a crime provided for in parts 1 and 2 of Article 332 of the Criminal Code of the Russian Federation;
- if open disobedience occurred, and other measures of influence did not affect his behavior.
If open disobedience develops into resistance to the commander, then the commander may use other military personnel, such as a daily squad, to isolate those disobeying a lawful order in order to make an arrest. In this case, the arrest can be made in accordance with the rule established by Part 2 of Article 83 of the DU of the Armed Forces, which indicates that the right of arrest in relation to soldiers, sailors, foremen and sergeants belongs to all officers.
If a serviceman’s misconduct contains elements of a crime, then it is necessary to report it to the commander of the military unit. The unit commander notifies the prosecutor, if necessary, initiates a criminal case and orders an inquiry. Disciplinary punishment of a serviceman (including arrest) does not exempt him from criminal liability.
2. Carry out proceedings in accordance with Article 86 of the DU of the Armed Forces in order to identify the causes and conditions that contributed to the commission of the offense.
This is a very important stage in the commander’s activity. The commission of similar offenses in the future depends on how correctly he finds out the reasons for committing an offense and is able to fight them.
If the team has a favorable climate, an atmosphere of intolerance for violations of military discipline, and the commission of offenses by military personnel depends only on personal indiscipline, it is necessary to work with specific individuals. The most effective are a personal conversation with an explanation of the grounds for responsibility for committing military crimes, as well as a call for a conversation with a military prosecutor. And, of course, the application of appropriate disciplinary action.
If there is an unfavorable atmosphere in the team in terms of combating violations of military discipline, then in addition to punishing those directly responsible in a disciplinary manner, it is necessary to use all methods of educating personnel with the involvement of all officers of the unit in strict control over the military personnel. But here, too, one means of influence can be distinguished from the rest in its effectiveness: to come to an agreement with the leadership of one of the disciplinary units and invite one of the convicts serving a sentence there to a meeting with the personnel. Experience shows that frank stories from convicts influence soldiers several times more powerfully than an officer’s lecture.
If officers or warrant officers and midshipmen fail to comply with an order, it is also necessary to find out the reasons for the offense.
The reasons for open disobedience may be reluctance to continue military service, personal hostility towards the commander, being in a state of strong emotional agitation, under the influence of alcohol or drugs, etc. But in each specific case it is necessary to understand and bring to criminal liability or disciplinary action - up to dismissal with military service in accordance with paragraphs “b” and “c” of Part 2 of Article 49 of the Law of the Russian Federation “On Military Duty and Military Service”.
But officers and warrant officers are still a more conscious category of military personnel, and they generally do not need to be explained what consequences may arise for failure to comply with an order. Most often, their failure to comply with an order occurs unintentionally, due to negligence, negligence or imprudence. In this case, you can limit yourself to disciplinary action if serious consequences do not occur.
Finding out the reasons for non-execution of an order allows not only to determine the type of legal liability and the punishment, but also to prevent the commission of such offenses through public discussion of the misconduct of officers, warrant officers and midshipmen. For these purposes, you can use meetings of military personnel of a military unit or comradely courts of honor, which, if the meetings are conducted correctly, have a great influence on the participants.
Failure to comply with a lawful order is an offense that encroaches on the basis of the structure of the Armed Forces of the Russian Federation - the principle of unity of command, for the commission of which disciplinary or criminal liability is provided. No failure to comply with a lawful order should go unpunished, since impunity breeds permissiveness, and this actually means the cessation of the unit’s existence as a combat unit. But for punishment to be effective, it must be legal, timely and commensurate with the severity of the consequences of failure to comply with the order. This is the only way to maintain military discipline in the troops at a high level, which will ensure the fulfillment of assigned combat missions to protect the Fatherland.
[1] Further in the article UVS of the Armed Forces, Disciplinary Charter - DU of the Armed Forces.
[2] In case of this punishment, deductions are made from the convict’s salary to the state’s income in the amount established by the 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.
Currently, the Federal Border Service of the Russian Federation has developed an Instruction on the organization of control over the behavior of military personnel, suspended sentences and those sentenced to restrictions on military service (put into effect by Order of the Federal Border Guard Service of the Russian Federation dated February 1, 1997 No. 88).
Commentary to Art. 332 of the Criminal Code
1. The objective side is expressed by inaction - the subordinate does not carry out the lawful order of the superior given in the prescribed manner. According to Part 2 of Art. 42 of the Criminal Code, failure to comply with a knowingly illegal order or instruction excludes criminal liability.
In this case, inaction can be active, when a subordinate openly declares that he will not carry out the order given to him, and passive, if the subordinate does not actually carry out the order of his superior.
2. The law specifies socially dangerous consequences, the occurrence of which is mandatory for the recognition of this crime as completed - causing significant harm to the interests of the service. This concept is evaluative, and the significance of the harm in each specific case must be established by the court. Significant harm may include causing significant material damage, disrupting activities to complete current tasks, etc.
3. The subjective side is characterized by guilt in the form of direct or indirect intent.
4. The subject of the crime is a special one - a subordinate military man who does not carry out the order of his superior.
5. The concept of grave consequences (Part 2) is evaluative. These include negligent infliction of death or harm to the health of the victim, complete disruption of a combat mission, etc.
6. The objective side of the crime provided for in Part 3 is the failure to execute an order, which entailed grave consequences. From the subjective side, this attack is characterized by a careless form of guilt in the form of frivolity or negligence.
Commentary on Article 332 of the Criminal Code of the Russian Federation
1. The public danger of non-execution of an order is determined by the fact that it violates the order of command and control of troops established by military regulations, established in order to ensure their constant combat readiness, complicates the normal performance by military units and subunits of the tasks assigned to them, thereby damaging the interests of the service.
2. The object of encroachment in case of non-execution of an order is the order of military subordination, implementing the principle of unity of command. The Charter of the Internal Service of the Armed Forces of the Russian Federation (Article 30) defines unity of command as one of the principles of building the Armed Forces, their leadership and relationships between military personnel. Article 31 of this Charter and Art. 9 of the Disciplinary Charter of the Armed Forces of the Russian Federation gives the commander (chief) the right to give orders and obliges the subordinate to obey unquestioningly, which is the basic principles of unity of command. Article 40 of the Charter of the Internal Service of the Armed Forces of the Russian Federation determines: “The order of the commander (chief) must be carried out unquestioningly, accurately and on time” <1>. ——————————— <1> See: General military regulations of the Armed Forces of the Russian Federation. M., 1994. P. 19.
3. An order, for non-compliance with which a DU is established, is an order of the commander (chief), addressed to a subordinate and requiring the mandatory performance of certain actions, compliance with certain rules, or establishing some kind of order, regulation (meaning a legal order - see commentary to Article 42) (Article 36 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 December 14, 1993 N 2140 <1>). ——————————— <1> SAPP RF. 1993. N 51. Art. 4931.
4. Chiefs differ in their official position and military rank. The superiors to whom the serviceman is subordinate in service, at least temporarily, are direct superiors. By military rank, superiors are military personnel of a higher rank, for example generals, admirals, colonels and captains of the first rank - for junior officers and lower military personnel; lieutenant colonels, majors and their equals - for warrant officers and subordinates; junior officers - for sergeants and lower-ranking military personnel, etc.
5. From the objective side, a crime can be committed in the form of disobedience, committing actions prohibited by an order, other deliberate failure to comply with an order (parts 1 and 2) and failure to execute an order due to careless or dishonest attitude towards service (part 3).
5.1. Disobedience is expressed in an open refusal to carry out the order of the superior, when a subordinate, opposing his will to the will of the superior, categorically declares or otherwise demonstrates that he will not carry out the order.
5.2. Another deliberate failure to comply with an order is that a subordinate accepts the order of the superior for execution, but does not actually carry it out. In this case, the intention of non-execution of the order may arise from the perpetrator at the time of receipt of the order or later.
5.3. Failure to execute an order due to negligence occurs when a subordinate, having received an order from his superior, due to negligence or dishonest attitude towards service, does not fulfill the requirements of the order or fulfills it improperly. This may be the result of forgetfulness or unclear understanding of the contents of the order.
6. The crime is completed (by the elements set out in Part 1) when, as a result of an open refusal to carry out an order or at the end of the established or necessary period during which it must be executed, significant harm is caused to the interests of the service.
Only such deliberate failure to comply with an order that results in socially dangerous consequences is criminally punishable. Significant harm means, for example, disruption of activities provided for in the daily routine, class schedule, exercise plan, failure to provide required types of allowances for military personnel, temporary disablement of military equipment, weapons, disruption of measures to be taken in a crisis situation, extreme situation, violation of rights and interests of citizens, discrediting the boss in front of his subordinates. It is determined by the court. Failure to comply with an order that does not cause significant harm to the interests of the service can only be recognized as a disciplinary offense.
7. The subjective side of the crime (parts 1 and 2) is characterized by direct or indirect intent. Careless failure to execute an order due to careless or dishonest attitude towards service (Part 3) involves failure to perform actions prescribed by the order, or the commission of actions prohibited by the order, as well as untimely, incomplete, inaccurate execution of the order, committed through negligence or frivolity.
8. The subject of a criminal attack can be any military serviceman subordinate permanently or temporarily to the person who gave the order.
9. The qualifying circumstances of intentional failure to execute an order (Part 2) are its commission by a group of persons, a group of persons by prior conspiracy or an organized group (see commentary to Articles 34, 35), as well as intentional or careless failure to execute an order, resulting in grave consequences .
Grave consequences may include: causing death by negligence, grave or moderate harm to human health, disruption of measures to ensure combat readiness, disablement of military equipment, causing major material damage to any form of property, etc., if these consequences are not form another, more serious crime. In the latter case, the act must be classified as a set of crimes.
10. Failure to execute an order, liability for which is provided for in Part 3, must be distinguished from negligence (Article 293). Because in the comment. The article deals with the negligent attitude of a subordinate to the execution of an order; it is special.
11. For the consequences of failure to comply with a criminal or other obviously illegal order, see the commentary. to Art. 42.
12. The acts described in parts 1 and 3 belong to the category of crimes of minor gravity, in part 2 - of medium gravity.
