ST 42 of the Criminal Code of the Russian Federation.
1. It is not a crime to cause harm to interests protected by criminal law by a person acting in pursuance of an order or instruction that is binding on him. The person who gave the illegal order or instruction bears criminal liability for causing such harm.
2. A person who has committed an intentional crime in execution of a knowingly illegal order or instruction shall bear criminal liability on a general basis. Failure to comply with a knowingly illegal order or instruction excludes criminal liability.
Commentary to Art. 42 Criminal Code
1. The conditions for the legality of actions when executing an order or instruction (these two terms are synonymous in the affected aspect) related to an order (instruction) are the following: a) the order must be legal in essence; b) the order must be legal in form, i.e. issued by an appropriate person within the scope of his competence and duly executed. In accordance with Part 2, failure to comply with a knowingly illegal order or instruction excludes criminal liability for such failure (for example, under Article 332 of the Criminal Code).
2. The conditions for the legality of actions in the execution of an order or instruction, relating to the actions themselves, are: a) the executor of the order must be obliged to obey the order and not carry out a knowingly illegal order (both illegal in form and illegal in essence); b) the performer must not go beyond the scope of actions specified by the order.
3. Violation of these conditions is classified as follows.
Firstly, the execution of an illegal order, which, however, is not obviously illegal for the executor, excludes the criminal liability of the executor. In this case, the person who gave the illegal order is liable as a direct executor (Part 2 of Article 33 of the Criminal Code).
Secondly, the commission of an intentional crime in execution of a knowingly illegal order entails criminal liability for the executor of the order and the person who gave it on a general basis.
Thirdly, the commission of a careless crime, even in execution of a knowingly illegal order, excludes the criminal liability of the executor; The person who gave the order bears responsibility.
Commentary on Article 42 of the Criminal Code of the Russian Federation
1. Military and service discipline require subordinates to fulfill obligatory acts of management, including those emanating from a superior or manager. Therefore, the law establishes as a general rule (Part 1 of the commented article) that causing harm to legally protected interests as a consequence of a person’s execution of an order or instruction that is obligatory for him cannot entail criminal liability for this act. The person who gave an illegal order or instruction is subject to liability. In this case, there is mediocre harm (see Part 2 of Article 33 of the Criminal Code).
2. An order is an authoritative demand based on normative legal acts, issued in the order of subordination by an authorized person, clothed in the proper form, addressed to the person (person) subordinate (subordinate) to him in the service, obligated (obliged) to fulfill it. An order differs from an order: it is issued not only by the manager (chief), but also by any other subject of management (for example, a deputy manager); addressed not only to subordinates, but also to other persons included in the sphere of relations where this act is in force; contains the nature of the requirements not for service, but for other general issues. In relation to orders and instructions, there is a presumption of their legality, and therefore they must be carried out unquestioningly, accurately and on time.
3. Execution of an order or instruction excludes the criminality of the act if: they were mandatory for execution by a specific person; were illegal; the person who performed it did not realize their illegality.
An order and instruction are binding if they are given by an appropriate person to a subordinate, within the powers of that person, are properly executed, and are not obviously illegal.
In accordance with the norms of acts of a military legal nature, under the conditions of the principle of unity of command, a military personnel cannot be given orders and instructions, or assigned tasks that are not related to service or aimed at violating the law.
Failure by a subordinate to comply with an order from a superior given in the manner prescribed by law is considered a crime against military service (see commentary to Article 332). If, after the verdict enters into force, the order for failure to comply with which the serviceman was convicted is declared illegal, the proceedings in the case are resumed due to a new circumstance <1>.
——————————— <1> Determination of the Military Collegium of the RF Armed Forces dated May 21, 2009 N 4n-90/09.
Execution by a subordinate of an order or instruction, the illegality of which was not obvious to him, cannot entail criminal liability for this person for the act and harm caused to legally protected interests in execution of such an order or instruction.
4. Criminal liability for any of the intentional acts provided for by the Criminal Code accrues to a subordinate if this act (action or inaction) was committed by him in pursuance of a knowingly illegal order or instruction of his superior (manager), i.e. when he realizes the obvious illegality of this order (instruction), primarily in its content.
A boss (manager) who has given a knowingly illegal order or instruction, which led to the commission of a deliberate crime by a subordinate in execution of this order (instruction), is the organizer of this crime (Part 3 of Article 33 of the Criminal Code), and the person who carried out such a knowingly illegal order ( order), - its executor (Part 2 of Article 33 of the Criminal Code). If a boss, together with a subordinate, acting on his obviously illegal order (instruction), 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 of Article 35 of the Criminal Code).
The fact that the subordinate carried out, although obviously illegal, but still the order or instruction of his superior (manager), can be considered as a mitigating circumstance (clauses “e” and “g” part 1 of article 61 of the Criminal Code) .
5. In some cases, physical or mental coercion on the part of a person who has given a knowingly illegal order (instruction) can create a state of extreme necessity for a subordinate, and therefore, the issue of liability for causing harm to them in execution of such an order (instruction) should be resolved according to the rules Art. 39 of the Criminal Code.
6. A person who refuses to carry out a knowingly illegal order or instruction cannot be held accountable for this (Part 2 of the commented article).
Second commentary to Art. 42 of the Criminal Code of the Russian Federation
1. In order for the execution of an order or instruction to exclude the criminality of an act, it must comply with the following conditions of legality.
2. The order or instruction was binding for execution by a specific person. An order or instruction is a mandatory instruction from an authority; Moreover, the orders are distributed in the military and paramilitary environment, among military personnel, including police officers, federal security service officers, etc.; orders - in the civil environment, which is not limited to government bodies, but also includes labor relations.
3. The order (instruction) was illegal, which resulted in harm to legally protected interests during its execution. The order (instruction) could contradict the Constitution, federal law, decree or order of the President, Government Decree, departmental regulatory act, order or order of a higher body or official. The content and nature of the damage caused are also not limited by law; it can be anything.
4. The person executing the order or instruction was not aware of its illegal nature, and, on the contrary, acted in accordance with executive discipline, believing that the order (instruction) was completely legitimate and legal. At the same time, there were no circumstances that could clearly indicate the illegality of the order or instruction.
5. If all three conditions of legality are present, a person who has executed an illegal order or instruction by causing harm to interests protected by criminal law shall not be held criminally liable.
6. Otherwise, if the executor of the order or instruction is aware of its illegal nature. Then he bears criminal liability on a general basis.
Judicial practice under Article 42 of the Criminal Code of the Russian Federation
Determination of the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation dated October 20, 2020 in case No. 80-UD20-4-A4
Within the meaning of the law (Part 8 of Article of the Criminal Code of the Russian Federation) in criminal cases of crimes the consequence of which was the death of a person, the rights of the victim , pass to one or more of his close relatives and (or) close persons. The daughter and brother of the deceased person by virtue of paragraph 4 of Art. 5 of the Code of Criminal Procedure of the Russian Federation are his close relatives. Contrary to the opinion of the lawyer, the law does not establish any order in which close relatives of a person killed as a result of a crime should be recognized as victims.
Responsibility for giving illegal orders
If an order or other instruction in relation to an employee or subordinate implied the commission of illegal acts punishable by criminal law, the person who gave such order is fully liable under the relevant article of the Criminal Code of the Russian Federation, as if he himself was a direct accomplice in the crime.
Issues of complicity in a crime and punishment for it are considered by the provisions of Art. 32-36 of the Criminal Code of the Russian Federation. A person who gave an illegal order is considered as an instigator or organizer of a crime.
In addition, the person who issued the illegal order may also be additionally convicted of exceeding official authority, if any. Or, liability may be provided for the illegal use of existing official powers, depending on the nature of the crime. However, in some situations, namely, when the issuance of an illegal order did not contain signs of an intentional crime, the person in question is subject to conviction precisely for an unintentional socially dangerous act.
note
The presence of liability for giving illegal orders does not relieve the executor of such orders from liability. However, holding a person who refused to execute an order accountable for failure to execute it is not permissible if the illegality of the orders issued has been confirmed.
Commentary on Article 42 of the Criminal Code of the Russian Federation
In Part 1 of Art. 42 of the Criminal Code of the Russian Federation establishes a general rule according to which responsibility for harm caused as a result of the execution of an order or instruction that is binding on a person is borne not by the person who directly caused the harm, but by the person who gave the order or instruction.
This provision is especially important for persons who are fully subject to the rules on the obligation to carry out orders or instructions from superiors. For example, military service and a number of other services (police, Ministry of Emergency Situations, etc.) require unconditional execution of orders or instructions given. In particular, in accordance with Art. 39 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 November 10, 2007 N 1495, an order is an order of the commander (chief), addressed to subordinates and requiring the mandatory implementation of certain actions, compliance with certain rules, or establishing any order or regulation. At the same time, discussion (criticism) of the order is unacceptable, and failure to comply with the order of the commander (chief), given in the prescribed manner, is a crime against military service <1>. The order of the commander (chief) must be carried out unquestioningly, accurately and on time. Only after executing the order can a soldier who disagrees with the order be able to appeal it.
——————————— <1> NW RF. 2007. N 47 (part 1). Art. 5749.
The binding nature of an order (instruction), in addition to the order of execution of the service, is also determined by a number of formal parameters. First, the order must be given by the proper person. As a rule, this is an order from a boss to his subordinate. Secondly, the order must be given in the proper form. For example, in accordance with Art. 39 of the above-mentioned Charter, an order given in writing is the main administrative official document (normative act) of military command, issued on the basis of unity of command by the commander of a military unit. All commanders (chiefs) have the right to give verbal orders to their subordinates. Third, the order must be given within the authority of the person giving the order. Thus, daily duty is assigned by order of the regiment commander to maintain internal order, protect personnel, weapons, military equipment and ammunition, premises and other military property of a military unit (unit), monitor the state of affairs in units and timely take measures to prevent offenses, but cannot be appointed as a platoon commander. And the last sign of the obligatory nature of an order (instruction) is that it must not be deliberately illegal. So, in accordance with Art. 41 of the same Charter, commanders (chiefs) are prohibited from giving orders (orders) that are not related to the performance of military service duties or aimed at violating the legislation of the Russian Federation. Commanders (chiefs) who gave such orders (orders) are held accountable in accordance with the legislation of the Russian Federation. Knowing means that for the person carrying out the order, it is absolutely clear and there is no doubt about its illegality. In those cases where the illegality of the order is not obvious, responsibility for causing harm, as noted above, lies with the person who gave the order. His actions in such a situation are considered as the actions of a performer.
If a person causes harm in pursuance of a obviously illegal order, then his actions in accordance with Part 2 of Art. 42 of the Criminal Code of the Russian Federation are recognized as a crime. The criminality of the act in this case, in addition to other signs, is also due to the fact that, executing a knowingly illegal order, the person acts intentionally, as indicated by the sign of knowledge, and, therefore, in such situations, the person is aware of the social danger of his actions, foresees the possibility or inevitability of the onset of socially dangerous consequences and desires their occurrence or consciously admits the possibility of such consequences occurring or is indifferent to them. In such cases, unlike the previous one, the actions of the person who gave the order should be qualified as the actions of the organizer, and the person who carried out the order as the actions of the executor. When the objective side of a crime is jointly carried out by both a subordinate and a person who has given a knowingly illegal order, their actions should be considered as committed by a group of persons by prior conspiracy.
At the same time, the law takes into account that a subordinate, committing a crime in the situation under consideration, still carries out the order of his superior and classifies this circumstance as a mitigating circumstance (clause “g”, Part 1, Article 61 of the Criminal Code of the Russian Federation). Here you should pay attention to the fact that an order or instruction is simultaneously a mental coercion of a person to perform certain actions, which can also be regarded as a circumstance mitigating punishment (clause “e” of Part 1 of Article 61 of the Criminal Code of the Russian Federation). With such a coincidence, in our opinion, only one of the circumstances that is most suitable for a particular situation should be taken into account as a mitigating punishment. In addition, the presence of a deliberately illegal order or instruction can create conditions of extreme necessity for a subordinate, when, by executing a deliberately illegal order, a person causes less harm compared to the harm that could have occurred as a result of non-execution of the order. In such cases, the act is assessed from the perspective of the rules established by Art. 39 of the Criminal Code of the Russian Federation.
Failure to comply with a knowingly illegal order or instruction excludes criminal liability.
Judicial practice: sentences and punishment under Art. 42 of the Criminal Code of the Russian Federation
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The concept of an illegal order and its legal regulation
Social and legal relations within the framework of employment or service imply the presence of a strictly defined vertical of power. At the same time, persons higher in the official or official ladder have the right to issue orders and instructions that are mandatory for execution by lower-level employees or subordinates. Responsibilities for their implementation are fixed in the military regulations, the Labor Code of the Russian Federation and other regulatory documents.
At the same time, in some cases, the execution of an order may lead to the commission of unlawful acts containing signs of criminal offenses. Considering that failure to comply with an order may entail disciplinary liability, Russian legislation regulates exemption from liability for actions related to the direct execution of orders from superiors. However, there are some limitations.
In particular, an example of a normative document providing exemption from liability is Article 42 of the Criminal Code of the Russian Federation. It is included in the chapter explaining cases of non-enforcement of criminal liability. This article regulates liability for the execution of illegal orders or their non-execution. It applies to both workers and employees of internal affairs bodies, security agencies, as well as persons in military service.
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The current standards of administrative law in Russia do not provide for exemption from such liability resulting from the execution of illegal orders.
