What Constitutes an Order in Military Service: Legal Definition
To understand the concept of an order, one can refer to the Law of Ukraine “On the Statute of Internal Service of the Armed Forces of Ukraine” and the scientific-practical commentary to the relevant article of the Criminal Code of Ukraine, which defines liability for the refusal to execute such an order.
According to the aforementioned sources, an order is recognized as a mandatory requirement issued by a commander or superior demanding a subordinate to perform or refrain from performing certain service-related actions.
It may be addressed to a single individual or a group of service members and aims to achieve a specific result—that is, to do something or, conversely, not to do something. The order must be expressed clearly and must not allow for double interpretation.
An order may be issued in writing, orally, or by other means, and transmitted directly to the subordinate or through other persons, including via telephone, telegraph, radio communication, etc. For certain military service matters, only a written form of issuing orders is required, particularly regarding the expenditure of funds.
Refusal to Execute an Order in Wartime: When Is It a Crime?
A refusal to execute an order in wartime is classified under Part 4 of Article 402 of the Criminal Code of Ukraine (CCU). The relevant part of the aforementioned article states that disobedience committed under martial law or in a combat situation is punishable by imprisonment for a term of five to ten years.
Therefore, it is necessary to clarify what constitutes disobedience, as well as what constitutes martial law.
The disobedience mentioned above is defined as an open refusal to execute a superior’s order, as well as other intentional non-execution of an order. A detailed analysis of open refusal will be provided in the next section.
Regarding “other intentional non-execution of an order,” this occurs when a subordinate does not openly declare that they will not execute the order (i.e., the order is ostensibly accepted for execution), but the individual intentionally fails to carry it out.
It is also necessary to specify what is considered non-execution of an order. Non-execution is recognized when an individual:
- fails to perform the actions specified in the order;
- performs actions prohibited by the order;
- executes the issued order improperly.
Thus, if at least one of the above-mentioned acts is present, it is considered that the individual has committed other intentional non-execution of an order, and consequently, their actions are qualified under Part 4 of Art. 402 of the CCU.
Regarding martial law, at the time of writing this article, such a state is in effect on the territory of our state. The concept of martial law is specified in Part 1 of Art. 1 of the Law of Ukraine “On the Legal Regime of Martial Law,” but there is no need to cite it here; it suffices to state that the corresponding state was introduced by the Decree of the President of Ukraine No. 64/2022 dated February 24, 2022.
Therefore, currently, the actions of an offender provided for by Article 402 of the CCU will be qualified only under Part 4 of the said article, i.e., as committed under martial law conditions.
Additionally, the Criminal Code of Ukraine contains another article under which an individual’s actions may be qualified. Non-execution of a superior’s order, committed in the absence of signs specified in Part 1 of Art. 402 of the CCU (i.e., the corpus delicti we discussed above), if it caused grave consequences, is qualified under Part 1 of Art. 403 of the CCU. However, the commission of such an act under martial law, which is relevant at the time of writing, constitutes the corpus delicti provided for by Part 3 of the corresponding article.
A mandatory condition for qualifying an individual’s actions under Article 402 of the CCU is the presence of grave consequences. Grave consequences usually include: disruption of measures to ensure the constant combat readiness of a military unit, subunit, or ship; failure of a combat mission or operation; destruction or damage to combat and special equipment; loss of life; loss of command and control over troops; causing substantial property damage, etc.
Furthermore, it is crucial to establish a causal link between the individual’s criminal actions and the grave consequences that occurred, as it is necessary to determine that these actions were indeed the cause. If the causal link is not established or the consequences are not deemed grave, the individual’s actions cannot constitute a crime, and such a person will not bear liability under the Criminal Code.
We see that the elements of the corresponding crimes provided by the Criminal Code of Ukraine are similar, but at the same time, they have certain differences that should be pointed out for their distinction:
- Firstly, the cited crimes differ in the form of guilt. The crime provided for by Article 402 of the CCU is committed only intentionally, meaning the person is aware of the socially dangerous nature of their act (action or inaction), foresees its socially dangerous consequences, and desires their occurrence (or does not desire but consciously admits their occurrence). At the same time, the act provided for by Article 403 of the CCU is committed through negligence.
- Secondly, for the crime provided for by Article 402 of the CCU, it does not matter whether any consequences occurred or not. Conversely, for the crime defined by Article 403 of the CCU, the occurrence of grave consequences is a mandatory condition; without this, the corpus delicti will not be present.
- Thirdly, the indicated crimes also differ regarding the moment of their completion. This difference stems from the previous point regarding consequences. The crime provided for by Article 402 of the CCU is considered complete immediately from the moment the person refuses to execute the order. Regarding the criminal offense defined by Article 403 of the CCU, such a crime will be considered complete only after the occurrence of grave consequences.
In summary, one must approach the qualification of an individual’s actions very carefully, as at first glance the crimes discussed above are very similar, yet they have specific features by which they are distinguished.
Open Refusal to Execute an Order: How It Is Recorded and What Is Considered
Open refusal to execute an order constitutes the corpus delicti provided for by Article 402 of the Criminal Code of Ukraine, mentioned above. Generally, such actions carry more severe consequences for the offender, as such a refusal is expressed in a defiant form.
Such disobedience manifests in the subordinate stating orally or in writing, in a categorical form, privately or publicly, that they will not execute the requirement of the commander or superior. Furthermore, the individual may silently and demonstratively perform actions that serve as confirmation that the subordinate will not execute the order.
It is also necessary to distinguish open refusal from a subordinate’s argument regarding the execution of an order. If the person executed the order despite discussing it negatively, the corpus delicti is not formed, and the person will not face criminal liability. In such a case, the person may only be subject to disciplinary liability.
Disobedience under Art. 402 of the CCU is considered a completed crime precisely from the moment of the open refusal. This means it does not matter whether any consequences occurred or not; the person will still be held liable merely for the fact of the refusal.
Additionally, liability will arise only if the person has direct intent during the commission of such an action, meaning they are aware of the socially dangerous nature of their act (action or inaction), foresee its socially dangerous consequences, and desire their occurrence.
Open refusal may be recorded either in writing, for example in a report (raport), or orally, particularly through witness testimony, audio or video recording, etc.
Refusal to Execute a Combat Order Due to Health Conditions: Is It a Valid Ground?
Legislation does not explicitly provide for an unsatisfactory state of health as a ground for refusing to execute a combat order. To clarify the answer to this question, one should refer to judicial practice, which will be detailed in one of the sections.
Having analyzed the relevant practice, one can conclude that the state of health can indeed be a ground for refusing to execute a combat order. From the analysis, it can be concluded that in this category of cases, the evidentiary base and appropriate argumentation are very important.
It is necessary to challenge the issued order, provide documents confirming the unsatisfactory state of health, and compile a report clearly stating the specific reasons for the refusal, describing exactly what complaints the service member has regarding their condition.
Liability for Disobedience or Refusal to Execute an Order (Art. 402–403 CC of Ukraine)
As noted above, the relevant crimes are provided for in the Criminal Code of Ukraine, and consequently, the individual bears criminal liability.
Regarding Article 402 of the CCU, according to Part 4 of the cited article—that is, when such an act is committed under martial law—it is punishable by imprisonment for a term of five to ten years.
Regarding the crime provided for by Article 403 of the CCU, if committed under martial law, the person is punishable by imprisonment for a term of five to eight years.
Based on the above, it should also be noted that the crime provided for by Article 403 of the CCU carries a less severe punishment compared to the crime provided for by Article 402 of the CCU. This is explained by the fact that the commission of acts qualified under Article 403 of the CCU poses less public danger than acts under Article 402 of the CCU.
When Criminal Liability Does Not Arise: Justified Cases
Much has already been said about the existing elements of crimes, particularly regarding liability. However, it is also necessary to point out cases where criminal liability for the aforementioned criminal offenses does not arise.
Firstly, it should be noted that a crime is not committed if the person refused to execute an illegal order. According to Article 60 of the Constitution of Ukraine, no one is obliged to execute manifestly criminal instructions or orders. Legal liability arises for issuing and executing a manifestly criminal instruction or order.
Furthermore, criminal liability for the order will be borne precisely by the superior who issued it. Moreover, the criminality of such an illegal order must be obvious and raise no doubts for the person issuing it and the person refusing to execute it.
Secondly, as we noted above, a person may refuse to execute an order based on their state of health. In this case, it is necessary to specify the concrete reason for the refusal (exactly what ailment the person has), the presence of a causal link between the person’s unsatisfactory condition and the impossibility of executing the order, and also to compile and submit supporting documents.
Thirdly, as also mentioned above, arguments regarding an order cannot be considered a crime if, in the end, the subordinate executed such an order.
Thus, we see that liability for the cited crimes does not always arise, as there are certain exceptions. Therefore, one should very carefully examine the case materials and check whether there are specific circumstances that render the person innocent.
What a Commander Does in Case of Disobedience or Refusal
It should be remembered that the commander (superior) bears responsibility for the issued order, its consequences, as well as for the failure to take measures for its execution, and for abuse or excess of power or official authority.
Furthermore, the commander may order the subordinate to briefly repeat the content of the issued order to ensure the person understood it correctly. Additionally, if the service member is convinced that they cannot execute the order in a timely manner and in full, they are obliged to report this immediately.
If a person truly refuses to execute an order, then the commander, considering the reasons for the refusal, may change their instruction. Additionally, the superior may listen to the service member’s suggestions and adjust the order so that the subordinate can execute it.
In the event that the person still refuses to execute the instruction, the commander draws up the relevant document regarding the refusal and notifies higher command.
According to the Ministry of Defense of Ukraine Order “On Approval of the Procedure for Conducting Official Investigations in the Armed Forces of Ukraine” No. 608 dated November 21, 2017, documentary evidence of disobedience includes the report of the immediate commander (superior), the order appointing the official investigation, the act and materials attached to the official investigation, and the order regarding the results of the official investigation.
Judicial Practice: How Ukrainian Courts Interpret Refusal of an Order
After February 24, 2022, the issue of holding service members liable for the crimes under consideration is extremely important and relevant, leading to an increase in judicial practice. However, it should be noted that there are both positive and negative verdicts, the majority of which are convictions. We will attempt to provide a few examples below.
Resolution of the Cassation Criminal Court of March 27, 2025, in case No. 953/3196/23:
It was established that the service member reported that he could not execute the order due to his state of health and lack of physical training. He understood that according to the Military Medical Commission (MMC) conclusion, he was fit for service. Since he did not intend to have himself declared unfit, he did not appeal the MMC conclusion. The colonel’s order was also not appealed.
Moreover, he did not submit a report to higher command regarding a lack of confidence in the commander and did not communicate specific reasons for the refusal to execute the order, limiting himself to general statements. The court took a critical view of the arguments regarding poor health, as the motives for committing the criminal offense provided for by Part 4 of Art. 402 of the Criminal Code of Ukraine can vary and do not affect the qualification. Data indicating that at the time of the crime the accused had health problems that prevented or could have prevented him from executing the issued order were absent.
Resolution of the CCC of the Supreme Court of January 20, 2025, in case No. 759/2917/23
In another Resolution of the CCC of the Supreme Court dated January 20, 2025, in case No. 759/2917/23, the accused stated that he refused to execute the order because, according to the conclusion of the military-medical commission, service in the Air Assault Forces (DShV) was contraindicated for him, for which there is a certificate in the proceedings, and the convict believes that his military unit belongs to the Air Assault Forces by branch.
The court noted that under the circumstances of this specific proceeding, the convict’s open refusal to execute the superior’s order, which consisted of the necessity for the accused to arrive at a certain settlement to occupy and hold a defense line, cannot be conditioned by the indicated MMC conclusions, as their content does not attest to the impossibility of the person executing the specific order mentioned above based on health characteristics.
Acquittal verdict on refusal to execute a commander’s order in case No. 233/2394/22
Additionally, positive practice also exists, specifically the issuance of an acquittal. In particular, such a verdict was delivered by the Kostiantynivka City District Court of Donetsk Region on March 15, 2023, in case No. 233/2394/22.
The service member stated that he had no criminal intent when refusing to execute the order but required medical assistance due to his state of health; he wished to receive appropriate treatment and then continue executing combat instructions. The motive for the refusal was an unsatisfactory state of health, specifically a swollen cheek and existing toothache, which affected his combat readiness.
The court indicated that, taking into account witness testimonies, the accused’s actions were aimed at realizing the social rights of a service member, namely obtaining medical assistance, which was carried out by the accused not based on his own criminal intentions, but exclusively due to a medical condition. Despite the above, the person’s illness was not verified by either the unit command or law enforcement agencies, who were aware of the reasons for the refusal to execute the combat order. Consequently, in view of the above, the person was acquitted.
What Is Taken into Account When Determining the GUILT of a Service Member in Refusing an Order
In the previous sections, we outlined a number of features of this category of cases that can significantly influence, in particular, the determination of a service member’s guilt in refusing an order. Therefore, we consider it necessary to summarize the relevant features. When determining the guilt of a service member in refusing an order, specific questions must be answered:
- Was the order lawful (was such an order, in particular, criminal)?
- Was the order communicated to the subordinate by established methods and means?
- What form of guilt is present—intent or negligence (this directly affects the qualification of the person’s acts)?
- Were there grave consequences (directly affects the qualification of the person’s acts)?
- What were the person’s motives for refusal, and were they substantiated?
- How did the person behave after refusing to execute the order?
Thus, we have attempted to provide a main list of questions, the answers to which will provide a general understanding of the guilt of a person suspected or accused of committing the crimes discussed above.
Legal Aid for Service Members: When to Consult a Lawyer
Having analyzed the indicated crimes, we first draw attention to the punishment in the form of imprisonment, which is the most severe type of liability, especially under martial law conditions. Consequently, the participation of a lawyer is extremely necessary to protect human rights, freedoms, and interests.
Firstly, a lawyer can help requalify the crime and distinguish Article 402 from Article 403 of the Criminal Code of Ukraine, as liability under the latter is less burdensome. The lawyer will analyze the circumstances of the case and determine if grounds exist for the aforementioned requalification.
Secondly, a lawyer will be able to see if there are exceptions for exemption from liability, for example, in the case of refusal to execute an order due to health conditions. If one of the grounds is present, the specialist will help collect the appropriate list of documents and the evidentiary base, since, as we determined earlier, proper justification and support of the position is an essential condition for a successful case outcome.
Thirdly, a lawyer will also be present at all stages of the proceedings, which is important in cases of this category.
Consequently, as follows from the above, it is dangerous to attempt to win the case alone without the participation of a qualified specialist when you are accused of committing crimes provided for by Articles 402 and 403 of the CCU. In such cases, there are countless details that can either help you or, conversely, harm you.