A serviceman cannot be prosecuted if he carried out the command or order of the commander without realizing their illegality. This decision was made by the Supreme Court of Russia, informed RAPS.
The draft resolution of the Plenum of the Armed Forces on the practice of reviewing criminal cases initiated on the fact of crimes against military service provides for bringing to justice for an illegal order not the one who executed it, but the commander in under the article of the Penal Code on abuse of power.
A deliberately illegal order is considered if it:
involves the commission of a crime against Russian law, has nothing to do with military service, was given in violation of due process.
On the other hand, if a serviceman follows such an order, realizing his “obvious criminality”, he can be held criminally responsible “on a general basis”.
The actions of the commander (leader) in this case will be classified under the article on incitement to commit a crime or the organization of a crime.
The Russian armed forces explained that the order in this case is an order:
given in form and procedure (in writing, orally, or by technical means, to a member or group); in accordance with laws and other normative legal acts related to military service.
Furthermore, the Supreme Court ruling clarifies that if the same illegal order has been given several times, from a criminal law point of view, this should be considered as an episode (“single crime”).
“In this case, it does not matter whether the order was given by a single person or by different bosses, since the intention of the author is aimed at the non-execution of an order in fact”, specifies the resolution.
The same approach, according to the Supreme Court’s decision, is applied in the event of non-execution of several orders, of different content, if they had “a common purpose and a single intention”.
“At the same time, there should be an internal unity between the individual acts of non-execution of an order, indicating stable behavior aimed at achieving a single intention,” the Supreme Court explained.
For example, we are talking about cases when a serviceman repeatedly refuses to enter the daily dress of the company / canteen, because he does not want to perform the functions of restoring order in the barracks / canteen .
News.ru edition too said on the decision of the Plenum of the Russian Armed Forces regarding military personnel who deserted the ranks of the Armed Forces for the first time under the conditions of a “difficult living situation”. According to the Supreme Court’s decision, they can be released from criminal liability.
We speak of military desertion in the case of:
serious illnesses in relatives, acts of violence on the part of colleagues, the impossibility of receiving the necessary medical care.
Escaping from the army in a difficult life situation does not create a corpus delicti, and the serviceman must be acquitted, explains News.ru with reference to clarifications from the RF Armed Forces.
