Failure to comply with the order

Failure to comply with the order

Failure to comply with an order assumes that in this case there is no open statement of refusal to comply with the order or demonstrative actions that indicate the subordinate's clear reluctance to comply with the superior's order. A mandatory condition for the crime provided for in Article 403 of the Criminal Code of Ukraine is the occurrence of serious consequences as a result of failure to comply with the order. At the legislative level, criminal liability is established for refusing to comply with an order. The purpose of this article is to consider cases where refusal to comply with an order can be considered legal, to determine responsibility for this type of crime, and to emphasize the importance of legal support in such situations.

Failure to comply with an order: specifics of the crime in Ukraine

Failure to comply with the order belongs to the category of war crimes and is punished according to articles 402 and 403 of the Criminal Code of Ukraine.

The subject of this crime is a military serviceman subordinate to the superior (leader), and the subjective side of the crime is carelessness.

The object of the crime is the order of execution of orders in military formations in accordance with the current Ukrainian legislation, and the objective side of the crime is manifested in inaction.

According to Article 403 of the Criminal Code of Ukraine, responsibility for non-fulfillment of an order arises, in particular, when the order was not fulfilled on time, correctly and completely due to forgetfulness or inattention.

Severe consequences as a mandatory component of the objective aspect of the crime

Such consequences include:

• Fire: It can be both damage to property and damage to health or life of people.
• Catastrophe: This can be a traffic accident, natural disaster, or other event that resulted in significant destruction and casualties.
• Accident: It can be an accident in transport, in production or in other areas, which resulted in damage to property, health or life of people
• This may be damage that significantly affected the victim's financial situation
• This can be pollution of soil, water, air or other components of the environment, which led to negative consequences for human health and the ecosystem

In what cases can refusal to execute an order be considered legal?

Refusal is legal only if the issued order is clearly criminal (the criminality of such an order must be obvious and beyond doubt).

What to do if a serviceman does not understand an order or cannot carry it out for certain reasons?

A military serviceman has the right to ask the commander to clarify the order. He is also obliged to inform the commander who gave the order and his immediate commander about its execution or non-execution, indicating the reasons for non-execution or late (incomplete) execution of the order. 

If a serviceman realizes that he will not be able to fulfill the order on time and completely, he must immediately notify the above-mentioned persons. At the same time, it is important to emphasize that he does NOT refuse to comply with the order and undergo military service.

Responsibility for refusal to comply with an order

Failure to carry out an order (disobedience) during martial law or in a combat situation is punishable by restriction of freedom for a period of 5 to 10 years.

The combat environment includes the conditions of offensive, defensive or other combined military, tank, sea, air or anti-aircraft combat. The beginning and end of the combat situation are determined in accordance with the current orders of the command.

Lawyer in case of failure to comply with the order of Article 403 of the Criminal Code

In cases related to failure to comply with an order under Article 403 of the Criminal Code of Ukraine, a lawyer provides pretrial protection of a serviceman, analyzes the circumstances of the case, helps prove the presence or absence of serious consequences, and also advises on legal grounds for failure to comply with the order, such as the apparent criminality of the order. He also provides protection in court, representing the interests of the defendant, preparing the necessary documents and statements, and ensuring compliance with all legal procedures, minimizing legal risks for the client.