On March 21, the Supreme Court of the Russian Federation issued several statements at once on the relatively recent amendments to the Criminal Code in relation to crimes during military operations, mobilization, hostilities, adopted in September 2022.
bondage punishment
The decision of the General Assembly of the RF Armed Forces, among other things, on the practice of considering criminal cases related to crimes against military service, clarifies in which cases surrender is considered a crime. From this it follows that the corpus delicti is formed only when the soldier voluntarily surrenders, although he has the opportunity to resist decisively and avoid capture.
“If a soldier is unable to escape captivity because of his physical condition, his actual capture by the enemy does not constitute the corpus delicti of this crime (for example, finding a soldier in a helpless situation, including as a result). a serious wound or shell shock),” says the document.
It is noted that courts considering such cases should take into account Art. 23 of the Internal Service Charter of the Armed Forces of the Russian Federation. It states that an employee who participates in hostilities, even when isolated from the unit or completely surrounded, is obliged to “fulfill his military duty with dignity”, to resist the enemy and avoid capture.
The Supreme Court explains that surrender is not just an act, but also an inaction as a result of a soldier’s passing into the enemy’s power. If the army was on the verge of capitulating but for an independent reason no crossing to the enemy side did not occur, this should be interpreted as an attempt to surrender.
At the same time, an employee who voluntarily surrenders for the first time may be freed from criminal liability. But for this, several conditions must be met: he tried to escape from captivity, returned to his unit and did not commit other crimes during captivity.
How is it different from state treason?
The RF Armed Forces also drew a line between surrender and criminal liability for treason. As stated in the decision, the delivery is qualified according to the relevant article. 352.1 of the Criminal Code of the Russian Federation only in the absence of signs of a crime under Art. 275 of the Criminal Code of the Russian Federation (treason).
For example, if a court finds that a person fighting on the Russian side surrendered precisely to participate in hostilities for the opposing side, this should be interpreted as treason simply by taking the side of the enemy. .
AWOL and desertion
The Supreme Court of the Russian Federation appealed to other courts to justify those who left or deserted their posts due to difficult living conditions. These include serious illness or death of a relative, violence against an employee in the military unit. However, justification is possible only once – in case of repeated AWOL or desertion, punishment under Art. 337 and 338 of the Criminal Code of the Russian Federation.
“It should be understood that the combination of difficult conditions, negative life situations of personal, family or service nature, which objectively existed at the time the act was committed, were perceived by the soldier as adverse conditions and decided under his influence. commit a crime,” explains the RF Armed Forces.
The Supreme Court also announced when desertion would be distinguished from resignation. First, AWOL responsibility comes only when there is an intention to evade military service and no longer return to the unit. Second, certain signs are needed for it to become a more serious desertion.
“Intention to desertion can be demonstrated by obtaining or presenting false documents proving identity or showing that he has completed military service as determined by law or that he has been barred from compulsory military service, employment, military service. The fact is that when he is detained by a law enforcement agency, he is forced to do his military service, etc.
When not penalized for the execution of a penalty order
A separate part of the resolution of the General Assembly of the Armed Forces of the Russian Federation is devoted to the responsibility for non-compliance with the command order. The Court clarified that where an order is manifestly unlawful, there is no criminal liability for non-compliance.
“According to part 2 of article 42 of the Criminal Code of the Russian Federation, an order of a superior, in particular an order aimed at committing a crime or violating the legislation of the Russian Federation, must be considered clearly illegal. related to the fulfillment of military duties or arranged in violation of the established procedure”, reminds the Supreme Court.
In addition, if the criminal order is still carried out, but the soldier did not understand his crime, he is not subject to criminal prosecution. In this case, the commander who gave the order is held responsible as the perpetrator of the crime.
“If a subordinate, following the order of his superior, orders him to commit known criminally punishable acts (allowing inaction), that is, with the realization of his flagrant crimes in order to achieve a certain criminal result, then he is subject to criminal liability in general, ”explains Russia Federation Armed Forces.