Sequence of actions upon receipt of an illegal order

Norm Art. 68 of the Federal Law of July 27, 2004 N 79-FZ
"On the state civil service Russian Federation"
provides for liability for violation of the legislation of the Russian Federation on the state civil service. The specified norm is a reference, i.e. does not directly provide for the types and order of responsibility, sanctions, but refers to others legal acts as well as other federal laws. So, for example, for committing disciplinary offenses in the civil service by the Law "On the State Civil Service of the Russian Federation" (hereinafter referred to as the "Law")
disciplinary liability is provided, which is a type of legal liability, the main content of which is the measures (disciplinary sanction) applied by the administration of the institution, enterprise to the employee (employee) in connection with the commission of a disciplinary offense by him. Disciplinary sanctions in the civil service include a remark, a reprimand, a warning about incomplete official compliance, etc.
Liability for the possible infliction of material damage as a result of a disciplinary offense is not directly regulated by the norms of the Law. However, according to Art. 73 of the Law, federal laws, other regulations Russian Federation, laws and other regulatory legal acts subjects of the Russian Federation containing labor law norms. Thus, the liability of civil servants occurs on a general basis in accordance with the Labor Code of the Russian Federation, which provides for liability parties to an employment contract.
Certain categories of civil servants are brought to civil liability for harm caused to a citizen or legal entity as a result of illegal actions (inaction) of state bodies or officials these bodies, including as a result of the issuance of an act that does not comply with the law or other legal act government agency(Article 1069 of the Civil Code of the Russian Federation). In addition, it is possible to bring to civil liability for the disclosure of information constituting official and trade secret that became known to a civil servant in connection with the execution official duties(Art. 15, 139, 393 of the Civil Code of the Russian Federation).
According to Art. 2.4 of the Code of Administrative Offenses of the Russian Federation, officials, including state civil servants, who permanently, temporarily or in accordance with special powers, perform the functions of representatives of power, are subject to administrative responsibility, i.e. endowed in accordance with the procedure established by law with administrative powers in relation to persons who are not in official dependence on them, as well as performing organizational and administrative or administrative and economic functions in state bodies, in the event that they commit administrative offense in connection with non-performance or improper performance of their official duties. The remaining categories of civil servants bear administrative responsibility in cases where the violation of civil service legislation committed by them constitutes independent composition an administrative offense, for example, arbitrariness (Article 19.1 of the Code of Administrative Offenses of the Russian Federation).
Civil servants may be held criminally liable for committing socially dangerous acts (actions or omissions) that constitute a crime under the relevant article of the Criminal Code of the Russian Federation. In the criminal legislation of the Russian Federation, the system of these crimes includes:
a) crimes against state power, the interests of public service and service in local governments (known as malfeasance) (Chapter 30 of the Criminal Code of the Russian Federation), for example, taking a bribe, abuse of power;
b) crimes committed by certain categories of civil servants (Articles 142, 142.1, 143, 145, etc.), for example, falsification of voting results;
c) crimes committed using official position (part 2 of article 128, part 2 of article 136, part 2 of article 137, part 2 of article 138, part 3 of article 139, paragraph "b" part 2 of article 141, etc.), for example, violation of the secrecy of telephone conversations using one's official position;
d) special malfeasance:
compliance crimes constitutional rights and freedoms of man and citizen (Article 140 of the Criminal Code of the Russian Federation - refusal to provide information to a citizen, 149 of the Criminal Code of the Russian Federation - obstruction of a meeting, rally, demonstration, procession, picketing or participation in them);
crimes in the area state regulation economic activity(Article 169 of the Criminal Code of the Russian Federation - obstruction of legal business or other activities, 170 - registration of illegal transactions with land, clause "b" part 3 of article 188 - smuggling committed by a person using his official position).
It should be noted that the presence of such a qualifying feature as "use of one's official position" is also associated with more severe punishments (sanctions) for committing an act. So, for example, discrimination committed using one's official position (part 2 of article 136 of the Criminal Code of the Russian Federation) is punishable by imprisonment for up to five years, but without the presence of such a qualifying sign (part 1 of article 136 of the Criminal Code of the Russian Federation) - up to two years.
The law provides that a civil servant is not entitled to execute an illegal assignment given to him. If a civil servant executes an illegal order, he and the head who gave this order bear disciplinary, civil, administrative or criminal liability in accordance with federal laws(Parts 2, 3, Article 15 of the Law).
The subject of criminal and administrative liability (in the context of the norm under consideration) is not all civil servants, but mainly those who have the status of an official (they act as representatives of the authorities, perform organizational and administrative or administrative and economic functions in a state body).

4.7. Responsibility of a civil servant for the execution of an illegal order of the head

As long as there is no doubt, the official's actions are presumed to be lawful. His instructions must be carried out by their addressees. These are the so-called voidable acts of government, as opposed to void acts. Void acts should not give rise to legal consequences from the very beginning as illegal and should not be executed.

AT legal regulation the civil service of the Russian Federation, the right of non-execution of an illegal order by civil servants is a relatively new institution. There are still widespread ideas about the need for unquestioning obedience to the orders of the chief, and filing a complaint does not release him from fulfilling the orders of the leadership and his official duties (for example, in accordance with clause 9.110 of the Disciplinary Charter of the Armed Forces of the Russian Federation). Clause 9 of the current Disciplinary Charter of the Armed Forces of the Russian Federation, approved. Decree of the President of the Russian Federation of November 10, 2007 No. 1495, in particular, states that the right of a commander (chief) to give an order and the duty of a subordinate to obey unquestioningly are the basic principles of unity of command. And even having filed a complaint about illegal actions (inaction) of the commander (chief) or other military personnel in relation to him, violation of the rights and freedoms established by the laws of the Russian Federation, and in other cases listed in the Charter, the military "is not exempted from fulfilling orders and his official and special duties" (p. 108).

Refusal of an employee to perform work in the event of a danger to his life and health due to violation of labor protection requirements or from performing heavy work and work with harmful and (or) hazardous conditions labor not covered employment contract, does not entail bringing him to disciplinary responsibility. This is the disposition of Art. 220 "Guarantees of the right of workers to work in conditions that meet the requirements of labor protection" of the Labor Code of the Russian Federation. It should be considered that this article is also applicable to the work of civil servants.

At present, the issue of responsibility of a public civil servant for the execution of an illegal order is enshrined in Part 2 of Art. 15 of Law No. 79-FZ: “A civil servant is not entitled to execute an illegal assignment given to him. Upon receipt from the relevant head of an assignment that, in the opinion of a civil servant, is illegal, a civil servant must submit in writing a justification for the illegality of this instruction, indicating the provisions of the legislation of the Russian Federation, which may be violated in the execution of this order, and obtain confirmation of this order in writing from the head.If the head confirms this order in writing, the civil servant is obliged to refuse to execute it. this assignment, the head bears disciplinary, civil, administrative or criminal liability in accordance with federal laws. Thus, the subordinate must explain to his leader how to correctly interpret the law that the leader violates. This is an unrealistic situation in a normal state apparatus.

There is a known case when the former Minister of Defense of the Russian Federation P. S. Grachev, who always faithfully served B. N. Yeltsin, after receiving an order from him to shoot the Supreme Soviet in October 1993, asked to give this order in writing. B. N. Yeltsin issued such an order, but after the execution of the parliament, Grachev ceased to be the Minister of Defense of the Russian Federation.

Professor M. A. Lapina offers other opportunities for the subordinate civil servant. "For example, a civil servant who discovers that he is required to commit an illegal or contrary to his official regulations action is obliged to inform the head of the state body or the internal security service, as well as law enforcement agencies. If this opportunity is used, the subordinate civil servant must be released from any legal liability and, if possible, even be encouraged.

Under the current legislation, the performer is liable on an equal footing with the head, even if the entire procedure specified in Part 3 of Art. 15 of Law No. 79-FZ. Such a transfer of responsibility from the leader to the subordinate demonstrates the complete irresponsibility of the leader. Previously, a good boss took full responsibility for the state of affairs, but now the law uses tricks to free the boss from responsibility for his incompetence. A similar provision is already being enshrined in the acts of the constituent entities of the Russian Federation.

In what cases, then, can the executor, of his own free will, recognize the order of a superior in the service as illegal and consider himself free from the obligation to fulfill it? A number of such situations are directly enshrined in legislation. Yes, Art. 288 of the Criminal Code of the Russian Federation provides that the assignment by a civil servant of a local self-government body who is not an official of the powers of an official and the commission by him of actions in connection with this, which entailed a significant violation of the rights and legitimate interests of citizens or organizations, is punishable by a fine of up to 40 thousand rubles. rub. or in size wages or other income of the convicted person for a period of up to three months, or compulsory works for a term of 120 to 180 hours, or by corrective labor for a term of up to two years, or by arrest for a term of up to three months.

A number of similar offenses are contained in the Code of Administrative Offenses of the Russian Federation. For example, Art. 19.1 of the Code of Administrative Offenses of the Russian Federation establishes such a composition as arbitrariness: "Arbitrariness, i.e. unauthorized, contrary to the procedure established by federal law or other regulatory legal act, the exercise of one's actual or alleged right, which did not cause significant harm to citizens or legal entities entails a warning or the imposition of an administrative fine on citizens in the amount of 100 to 300 rubles; for officials - from 300 to 500 rubles.

It seems that as long as there are no disciplinary tribunals in Russia, no special procedure is required to prove that the person issuing such orders has exceeded his authority.

It raises doubts from the point of view of the legitimacy of the instructions of the head of the situation when the labor of a civil servant is used for non-official purposes. It seems that in the case described above, the use of students of the Air Force Academy. Gagarin on tea packaging, there is a basis for punishing the employees of this Academy for carrying out an illegal order due to the fact that this is the only specialized in Russia educational institution, preparing the leadership for the Air Force of the Russian Federation, did not fulfill its main purpose for half a month.

A difficult legal moment is the definition of the subject having the right to decide whether the order of the head is in accordance with the law. The state apparatus cannot function normally if each civil servant, according to his own taste, evaluates whether to follow his order or not. Recognition in the legislation of the fact that a civil servant is obliged to carry out an order if this order is given in writing does not resolve the issue of applying responsibility to the person who gave the written order.

The problem of responsibility of ordinary executors of an illegal order in judicial practice arose. An example is the trial of police officers in Blagoveshchensk, who, on the orders of the leadership of the Ministry of Internal Affairs of Bashkiria, used force to disperse a demonstration of citizens protesting against the adoption of the Federal Law on the elimination of benefits from the Soviet period, their "monetization". As a result of a "preventive operation" by the police, 342 residents of Blagoveshchensk were officially recognized as victims. At the same time, the policemen were convicted not for carrying out an illegal order, but for exceeding their powers.

The prohibition to execute an illegal order is of interest in the light of the constitutional provision on the prohibition of forced labor (Part 2, Article 37 of the Constitution of the Russian Federation). Subjective interpretations in this matter are inevitable. For example, the administration of the PPTS "Yakutskgorteploset" went to court with a demand to recognize the strike of its workers as illegal. The local court granted this requirement. But Judicial board in civil cases of the Supreme Court of the Russian Federation, having considered the case on cassation, the court's decision was canceled on the following grounds: "The court decision on recognizing the strike of workers of the Yakutskgorteploset PPTS as illegal means that these workers are obliged to begin their work duties, while the reason their refusal to perform work duties - non-payment of wages - has not been eliminated by the administration. Such a decision cannot be recognized as legal, since the requirement to perform work without appropriate payment is forced labor, and this is prohibited by the Convention international organization Labor No. 95 of June 8, 1949 (in force on the territory of the Russian Federation since September 24, 1952), Part 2 of Art. 37 of the Constitution of the Russian Federation and Art. 2 Labor Code of the Russian Federation".

A list of legal relations indicating whether any actions relate to forced labor or not, is given in Art. 4 of the Labor Code of the Russian Federation.

Finally, an administrative order for the direct destruction of terrorists without trial or investigation seems to be illegal, its implementation is prohibited by the legislation on public service. According to the Constitution of the Russian Federation, no one can be found guilty without a court verdict (part 1, article 49), while everyone has the right to life (part 1, article 20). However, such cases do occur. In June 2010, in Primorye, several young people were shot and killed during arrest, suspected of using force to fight against the actions of the authorities. But it is impossible not to see that without changing the Constitution of the Russian Federation quoted above, their destruction cannot be recognized as a legal action. Such criminals become political, acting against illegal, in their opinion, actions of the authorities.

The most "famous" modern history Russia received orders to use flamethrowers during the storming of a school in Beslan in 2004 and to burn the top four floors of the House of the Government of the Russian Federation in Moscow with napalm on the night of October 4-5, 1993. The executors of such orders, including the Decree of the President of the Russian Federation of September 21, 1993. 1400, are criminals on a par with the one who gave the order."

Paragraph 4 Instructions for organizing work on the application of incentives and disciplinary actions in the bodies for the control of the circulation of narcotic drugs and psychotropic substances, approved. order of the Federal Drug Control Service of Russia dated November 28, 2008 No. 424, provides that an employee of the Federal Drug Control Service, in case of doubt about the legitimacy of an order, instruction, instruction received by him for execution, is obliged to immediately inform the immediate (direct) supervisor about this in writing. If the latter confirms this order, order, instruction, the employee is obliged to fulfill it. Upon receipt of an illegal order, order, instruction that is contrary to the legislation of the Russian Federation, the employee is obliged to act in accordance with the requirements of the legislation of the Russian Federation.

Taking into account the fact that the courts daily puzzle over the qualification of the act, i.e. decide whether it is criminally punishable, imposing an obligation on an ordinary executor to evaluate on your own the legitimacy of the order is a farce.

Another thing is when some military commanders do not realize that sending subordinate soldiers to certain death is an illegal order, indicating the commander's inability to work with people, his insufficient qualifications or cruelty. Thus, in March 2007 in Chechnya, the military prosecutor's office of the Shali garrison opened a criminal case against the commander of one of the military units, who sent a reconnaissance group into a minefield. As a result, two servicemen were seriously injured in the obviously dangerous area indicated on the map.

Article 15. Main duties of a civil servant

1. A civil servant is obliged:

1) comply with the Constitution of the Russian Federation, federal constitutional laws, federal laws, other regulatory legal acts of the Russian Federation, constitutions (charters), laws and other regulatory legal acts of the constituent entities of the Russian Federation and ensure their implementation;

2) perform official duties in accordance with the official regulations;

3) execute the instructions of the relevant managers given within the limits of their powers established by the legislation of the Russian Federation;

4) observe the rights and legitimate interests of citizens and organizations in the performance of official duties;

5) observe the official regulations of the state body;

6) maintain the level of qualification necessary for the proper performance of official duties;

7) not to disclose information constituting state and other secrets protected by federal law, as well as information that became known to him in connection with the performance of official duties, including information relating to the private life and health of citizens or affecting their honor and dignity;

8) protect state property, including that provided to him for the performance of official duties;

9) submit, in accordance with the established procedure, information about himself and members of his family provided for by federal law;

10) notify about renunciation of citizenship of the Russian Federation or acquisition of citizenship of another state on the day of renunciation of citizenship of the Russian Federation or on the day of acquiring citizenship of another state;

11) comply with restrictions, fulfill obligations and requirements for official behavior, not violate the prohibitions established by this Federal Law and other federal laws;

12) inform the representative of the employer of personal interest in the performance of official duties, which may lead to a conflict of interest, take measures to prevent such a conflict.

1.1. A civil servant is obliged to indicate cost indicators in accordance with the requirements established by federal laws, decrees of the President of the Russian Federation.

2. A civil servant is not entitled to execute an illegal assignment given to him. Upon receipt from the relevant manager of an instruction that, in the opinion of a civil servant, is illegal, the civil servant must submit in writing a justification for the illegality of this instruction, indicating the provisions of the legislation of the Russian Federation that may be violated in the execution of this instruction, and receive confirmation of this instruction from the head in writing. If the manager confirms this order in writing, the civil servant is obliged to refuse to execute it.

3. In the event that a civil servant executes an unlawful order, the civil servant and the manager who gave this order bear disciplinary, civil, administrative or criminal liability in accordance with federal laws.

4. Civil servant replacing a position civil service category "heads" of the highest group of civil service positions, in order to avoid conflicts of interest in a public body, cannot represent the interests of civil servants in an elected trade union body of this state body during the period of his replacement of the specified position.

5. Civil servants are subject to mandatory state fingerprint registration in cases and in the manner established by federal law.