Execution of orders or orders - A commentary to the...

Execution of Order or Order

1. It is not a crime to cause harm to the interests protected by criminal law by a person acting in fulfillment of orders or orders binding him. Criminal liability for causing such harm is borne by the person who gave the illegal order or order.

2. A person who committed an intentional crime in fulfillment of a knowingly illegal order or order shall be criminally liable on general grounds. Failure to comply with knowingly illegal orders or orders excludes criminal liability.

1. The military and service discipline requires subordinates to carry out binding control acts for them, including those emanating from the chief or the head. Therefore, the law establishes as a general rule (part 1 of the article to be commented) that harming the interests protected by law as a result of the person's execution of orders or instructions binding him can not cause him criminal liability for this act. The person who gave the unlawful order or order is liable. In this case, there is a mediocre infliction of harm (see Part 2, Article 33 of the Criminal Code).

2. The order is based on normative legal acts, issued by way of subordination by an authorized person, clothed in an appropriate form by an imperative demand addressed to the subordinate (subordinate) to him in the service of persons (person) obliged to perform it. The order differs from the order: it is issued not only by the head (chief), but also by any other subject of management (for example, deputy head); is addressed not only to subordinates, but also to other persons entering into the sphere of relations, where this act operates; The nature of the demands is not on the service, but on other general issues. With respect to the order and order, there is a presumption of their validity, in connection with which they must be fulfilled unconditionally, accurately and on time.

3. Execution of an order or order excludes the crime of the act if: they were binding for execution by a specific person; were illegal; the performer did not realize their illegality.

The order and the order are binding for execution, if they are given by the proper person to the subordinate, within the powers of that person, are duly executed, are not knowingly illegal.

In accordance with the norms of acts of a military-legal nature, in the conditions of the principle of unity of command, a soldier can not be given orders and orders, tasks that are not relevant to the service or aimed at breaking the law.

Failure to comply with subordinate orders of the chief, given in accordance with the procedure established by law, is considered a crime against military service (see comments to Article 332). If, after the entry into force of the sentence, the order for which the soldier is convicted is recognized illegal, the proceedings are resumed due to a new circumstance.

Execution of subordinate orders or orders, the illegality of which was not obvious to him, can not entail criminal liability for this person for the act and harm caused to law-enforceable interests in fulfillment of such order or order.

4. Criminal liability for any of the deliberate acts envisaged by the Criminal Code occurs for the subordinate if this act (action or inaction) was committed by him in fulfillment of a deliberately unlawful order or order of the commander (manager), ie. when he realizes the obvious illegality of this order (order) primarily in its content.

The chief (leader) who gave a knowingly unlawful order or order, which led to the commission of an intentional crime by subordinates in fulfillment of this order (order), is the organizer of this crime (part 3 of Article 33 of the Criminal Code), and the person who performed such a knowingly illegal order (order), - its executor (Part 2, Article 33 of the Criminal Code). If the chief together with a subordinate acting on his knowingly unlawful order (order) jointly carried out the objective side of the corresponding intentional crime, then they are responsible for the crime committed by a group of persons by prior conspiracy (Part 2, Article 35 of the Criminal Code).

The fact that the subordinate was carrying out the order or order of his boss (leader), though obviously illegitimate, but still, can be considered as a mitigating circumstance (paragraph e 61 CC).

5. In some cases, physical or mental coercion on the part of a person who gave a knowingly unlawful order (order) may create for the subordinate a state of extreme necessity, and therefore the question of responsibility for causing harm to them in fulfillment of such an order (order) . 39 of the Criminal Code.

6. A person who refused to perform a knowingly illegal order or order can not be held accountable for this (part 2 of the article being commented).

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