On March 21, the Supreme Court of the Russian Federation issued multiple statements addressing the relatively recent amendments to the Criminal Code concerning crimes during military operations, mobilization, and hostilities, adopted in September 2022.
bondage punishment
The decision by the General Assembly of the RF Armed Forces clarifies how cases involving crimes against military service are to be treated, and specifies when surrender becomes an offence. It states that the criminal act is committed only when a soldier voluntarily surrenders, even if there is an option to resist decisively and avoid capture.
“If a soldier cannot escape capture due to physical condition, an actual capture by the enemy does not constitute the criminal act in this case (for instance, a soldier found in a helpless state, including as a result of a serious wound or shell shock),” the document notes.
The court emphasizes that decisions in such cases should reference Article 23 of the Internal Service Charter of the Armed Forces of the Russian Federation, which states that a service member who fights in hostilities, even while isolated from the unit or surrounded, must perform military duty with dignity, resist the enemy, and avoid capture.
The Supreme Court explains that surrender is not merely an act but also an inaction resulting from a service member falling into enemy hands. If the army was close to capitulation but did not cross to the enemy side for independent reasons, this should be read as an attempt to surrender.
At the same time, a service member who voluntarily surrenders for the first time may be exempted from criminal liability, provided several conditions are met: an attempt to escape from captivity occurred, the member returned to the unit, and no other crimes were committed during captivity.
How is it different from state treason?
The RF Armed Forces drew a distinction between surrender and criminal liability for treason. The decision states that surrender is assessed under the relevant article 352.1 of the Criminal Code, only in the absence of signs of a crime under article 275 (treason).
For instance, if a court finds that a person fighting on the Russian side surrendered specifically to join the opposing side, this should be interpreted as treason because it entails taking the side of the enemy.
AWOL and desertion
The Supreme Court of the Russian Federation urged other courts to consider excuses for those who left or deserted their posts due to difficult living conditions, such as serious illness or the death of a relative or violence within the unit. Such justification is possible only once; in the case of repeated AWOL or desertion, punishment under articles 337 and 338 of the Criminal Code applies.
“It should be understood that the combination of harsh conditions and personal, family, or service-related hardships, which objectively existed at the time of the act, could lead the soldier to view those circumstances as adverse and commit a crime,” the RF Armed Forces explains.
The Supreme Court also distinguished between desertion and resignation. AWOL liability appears only when there is an intention to evade service and not return to the unit. Additional signs are required for it to become a more serious desertion.
“Intent to desertion can be shown by obtaining or presenting false documents to prove identity, claiming to have completed military service as required by law or by being barred from compulsory service, employment, or military duties. When detained by law enforcement, a soldier may be compelled to fulfill service, etc.”
When not penalized for the execution of a penalty order
A separate section of the General Assembly’s resolution addresses accountability for failing to comply with a command order. The Court clarified that if an order is plainly unlawful, no criminal liability arises from non-compliance.
“Under part 2 of article 42 of the Criminal Code, a superior’s order, especially one aimed at committing a crime or violating national law, must be considered clearly illegal or related to the fulfillment of duties or actions arranged in violation of established procedures,” the Supreme Court notes.
Additionally, if the criminal order is carried out but the service member did not understand the illegality, no criminal prosecution follows. In such cases, the commander who issued the order bears responsibility as the perpetrator of the crime.
“If a subordinate, acting on a superior’s order, is directed to commit known criminal acts (including inaction) to achieve a criminal result, that subordinate faces criminal liability in general,” explains the RF Armed Forces.