Defence in cases of disobeying an order and breach of service rules

What is happening

In this group of cases almost everything turns on detail: who gave the order, whether it fell within that commander's authority, how it was communicated and what exactly was required. An oral order given in haste is often recorded in the file differently from how it was spoken. That is tested against reports, logbooks, witness evidence and communications records.

The lawfulness of the order itself is a separate question. An order that can only be carried out by breaking the law is not binding: this follows directly from Article 42 of the Criminal Code and Article 43 of the Internal Service Regulations of the Armed Forces. It also matters whether the man was physically and medically able to do what was required: his condition after a wound, a doctor's opinion, missing equipment or supplies.

Cases about breaches of the rules of conduct between servicemen work differently: there the conflict itself is central — its cause, who started it and what injuries are recorded. We do not judge guilt, that is for the court, but we do check whether the file matches the documents and the medical evidence.

What the law says

• The Criminal Code treats disobeying an order, resisting a superior and breaching the rules of conduct between servicemen as separate offences, each with its own matters to be proved.
• Only a lawful order given within the commander's authority is binding; an order requiring a breach of the law is not to be carried out.
• Not every failure to obey an order amounts to a crime: the consequences, the situation and the period, including mobilisation and active hostilities, all matter.
• Some of these breaches remain disciplinary, and drawing the line between a disciplinary offence and a crime is a separate question in every case.
• In cases about the rules of conduct between servicemen, forensic medical examination and the medical records of both sides are decisive.
• The military investigative bodies investigate and the garrison military court hears the case; the accused has the right to a defence advocate from the first interview.

What we do

• We enter the case as defence advocates and attend every interview, inspection and reconstruction involving our client.
• We establish who gave the order, when and in what form, and check whether it fell within that commander's authority.
• We examine whether our client was in fact able to carry out the order and gather the medical and material evidence of that.
• We request the unit's documents: orders, logbooks, reports, duty rosters, records of equipment and of the situation on the ground.
• We apply for fellow servicemen to be interviewed, for forensic medical and other examinations, and for medical records to be added to the file.
• We raise the distinction between a disciplinary offence and a crime, prepare the position for trial and, where needed, an appeal.

What we need from you

• Service documents: the contract or call-up papers, extracts from orders, a certificate of service.
• Everything received from the investigator: rulings, records of interview, summonses, charging documents.
• Medical records: opinions, discharge papers, certificates on wounds and treatment, any fitness restrictions.
• Reports, explanations and requests to the command bearing a receipt stamp, together with any replies.
• Details of fellow servicemen who were present and can describe the situation and the content of the order.
• Character references from the unit, records of decorations, details of family and dependants.