MILITARY JUSTICE PROVISIONS OF THE RUSSIAN FEDERATION1
Michael Noone
This commentary reviews three laws: Section XI of The Criminal Code of The Russian Federation
(No. 63-FZ, 13th June 1996), Chapter 33, Crimes Against Military Service; "On Several Issues on
Arrangement of the Martial Law Courts and Bodies of Military Justice," (Federal law 61-03,
13.04.98); and "On Courts Martial of the Russian Federation" (No. 1-0K3, 23 June 1999). It is
supplemented by two recent and informative articles in Volume 52 of The [U.S.] Air Force Law
Review (2002), "Institutions of Military Justice of the Armed Forces of the Russian Federation," by
General-Lieutenant Gennady Zolotukin, pp. 53-80, and "The Role of The Russian Constitutional
Court in Protecting The Rights of Active Duty and Retired Servicemen," pp. 81-92 by Professor
Bakhtiyar R. Tuzmukhamedov.
Thus the military justice system2 has three components: criminal laws which define and prohibit
certain behavior (Section XI of The Criminal Code of The Russian Federation (No. 63-FZ, 13th
June 1996), Chapter 33, Crimes Against Military Service); criminal procedure which establishes a
method for establishing the guilt or innocence of individuals charged with violations of the laws;
and identification of those officials and institutions responsible for applying the laws (the law "On
Courts Martial of the Russian Federation" (No. 1-0K3, 23 June 1999) and "On Several Issues on
Arrangement of the Martial Law Courts and Bodies of Military Justice," (Federal law 61-03,
13.04.98)).
Introduction
Since the laws regulating criminal procedure have not yet been translated, commentary, as such,
is premature. However, any examination of the Federation's provisions regarding military crimes
and legal institutions must be premised on common principles which acknowledge, for example,
1
The Criminal Code Of The Russian Federation (Crimes Against Military Service); On Courts Martial Of The Russian
Federation; On Several Issues On Arrangement Of The Activity Of Martial Law Courts And Bodies Of Military Justice.
2
When The Term "Military Justice System" Is Used, The Author Is Referring To A Separate Corpus Of Laws,
Administered In Whole Or In Part By Specialists In Those Laws, And Intended To Fix The Guilt Of Members Of The
Armed Forces Accused Of Crimes.
the right of an accused person to be told what he is accused of, defend himself and to be judged
impartially. The ways in which these principles are applied in a military context are a function of
many variables: national legal traditions, and the role(s) of the military within society are the most
distinctive. These considerations will also be incorporated in my comments on what I know of the
three components of the Federation's military justice system: crimes, procedure, and Institutions.
With regard to national legal tradition: Military justice systems conform to national criminal justice
practices for obvious reasons. Lawyers reason by analogy. Thus lawmakers called upon to
create or modify their military justice system will follow their national (civilian) criminal justice
system because it incorporates national notions of fairness, of what has come to be known as
"The Rule of Law." The Federation's national system is similar to those which can be found in
most Continental European countries and their former colonies, is derived from the Napoleonic
Code, and may be described as "accusatory," or "civil." Its most notable characteristic to those
who don't share the tradition is its reliance on magistrates as preliminary investigators and as
prosecutors. The alternative tradition is described as "investigatory" or "common law," has its
origins in Twelfth Century England, and is notable for its reliance on a jury. Both systems have
incorporated features from the other: common law trials are often heard without a jury and nonprofessional lay "judges" often participate in civil law trials. Whichever the case, one must ask, in
evaluating a military justice system, whether it conforms with national practices and, if it does not,
what justifies the deviation. We must await translation of the criminal procedure guidelines in
order to ask this question and to arrive at an answer.
The military's role in national society defines its military justice system. There are two fundamental
reasons for a distinct military justice system. The first is that some behavior, accepted in civilian
life or considered a trivial deviation from societal norms, will be treated more seriously, due to the
peculiar circumstances of military service. How seriously these peculiar circumstances will be
taken is a function of the perceived role of the armed forces in society. A state whose armed
forces expect to meet opponents in battle will demand a system firmly based on discipline, "control
gained by enforcing obedience or order." If an army is not intended to be used in battle - and many
are intended primarily for ceremonial purposes or as instruments to inculcate young male
conscripts or simply to perform public works - then its military justice system will more closely
resemble disciplinary systems which regulate the bureaucracy. The need for discipline defines, in
large part, the nature of the Criminal Justice Code: what offenses are taken seriously, and over
what categories of offenders may military courts exercise jurisdiction? Public statements of the
Federation's elected leadership indicate that they intend that their armed forces have a warfighting
capability.
Crimes under the RF Code
Civil law military codes typically distinguish behavior which constitutes a disciplinary offense from
that which would constitute a violation of the national civilian penal code. "Faute envisagee sous
ses aspects contraraires aux reglements de la discipline militaire, para oposition a l'infraction
penale (ou aux reflements administratifs)." "Disciplinaire (faute)".3 The same distinction between
penal and disciplinary offenses is made in Article 83 of the IVth Geneva Convention regulating the
punishment of prisoners of war. Although codes with Anglo-American origins do not overtly make
this distinction, it is apparent. Some disciplinary offenses, desertion or disobedience for example,
may not be crimes in civilian life. Anti-social acts which constitute a civilian crime may, depending
on national traditions, be tried before civilian or military courts. However the distinction between
penal and disciplinary offenses blurs when one considers behavior which constitutes a minor
civilian crime, e.g. drunkenness or petty theft - rarely prosecuted or, if prosecuted, not punished
severely - but which is treated as a serious offense in the military.
"Crimes Against Military Service," Section XI of The Criminal Code of the Russian Federation,
reflects, of course, the law as written, not as it is applied. Its list of offenses penalizes some
behavior, e.g. unauthorized abandonment of place of service (Article 337) which probably would
not be a crime if a Federation civilian were to leave his place of employment. Other provisions, e.g.
violation of motoring rules (Article 350) penalize behavior which constitutes an offense in civilian
life, but may apply more severe sanctions.
Although modern states' national criminal codes
adhere to the principle "nulla poena sine lege," (an offense must be defined in law before it can be
punished) some military justice codes permit punishment for more broadly defined conduct, e.g.
that which "is unbecoming an officer" (U.S.) or is "contrary to military order and discipline." (Ireland
and Norway). The Federation Code does not contain such a provision. It does, unlike older
Codes, explicitly provide, in Section XII, for the punishment of violations of international
humanitarian law. Section XI's jurisdiction apparently extends only to uniformed persons on active
3
Multilingual Glossary (Brussels: International Society For Military Law And The Law Of War, 1979).
service, and to reservists during training. Other nations extend their jurisdiction further: to
prisoners of war (see Articles 82 and 85 of Geneva Convention III); to cadets; and to civilians who
serve or accompany the armed forces. Apparently Section XII’s jurisdiction over humanitarian
crimes extends to civilians as well.
Colonel General Zolortutkhins's article asserts that military courts' jurisdiction extends to service
members' claims of violation of civil rights as well. The statutory basis for such jurisdiction was not
within the material reviewed.
Criminal Procedure
If the first characteristic of a robust military justice system is how seriously national authorities
consider the possibility that it will be employed in battle, the second characteristic is its ability to be
deployed. If the armed forces are only to be used internally the military justice system can rely
heavily on the domestic judicial system, which is typical of Continental Western European armies.
Until recently, deployments outside the home country were small units engaged in peacekeeping
operations or to suppress efforts to destabilize the governments of former colonies. Colonel
General Zolortutkhins's article asserts that military courts' jurisdiction extends outside the
Federations' territory.
The statutory basis for such jurisdiction was not within the material
reviewed. Disciplinary offenses, which under continental military law codes, provide for minor
punishment and little or no legal protections, are typically punished in situ, whether committed
domestically or outside the country.
If a penal offense is committed outside the national
boundaries, civil law systems typically return suspects to the home country for trial, after an
examining magistrate/prosecutor has gathered the evidence. The distinction between procedures
applicable to disciplinary offenses and those applicable to penal offenses was not apparent in the
material under review.
Military Justice Institutions
Colonel General Zolortutkhins's article elaborates on the structures outlined in the laws "On Courts
Martial of the Russian Federation" (No. 1-0K3, 23 June 1999) and "On Several Issues on
Arrangement of the Martial Law Courts and Bodies of Military Justice," (Federal law 61-03,
13.04.98). There is a hierarchy of military courts which handle both criminal justice, civil litigation
and administrative matters. The courts' jurisdiction thus extends to controversies which would not
fall within the jurisdiction of many nations' military courts. Garrison military courts are at the base of
the hierarchical structure; appeals may be taken to District (Fleet) Military courts, which also hear
as courts of first instance, those cases which are not within the competence of garrison courts.
The Military Collegium, part of the Federation's Supreme Court, hears appeals from District (Fleet)
courts and serves as a court of first instance:
in disputes claiming that Federation officials,
including the President, have acted ultra vires in matters affecting members of the armed forces; in
cases involving alleged misconduct of a military judge; or cases of unusual complexity or social
consequences. Professor Tuzmukhamedov's article points out that the Federation's Constitutional
Court, although not part of the formal military justice hierarchy may also be called upon to protect
the rights of service members and their families.
The material under review offers an introduction to the Federation's efforts to introduce
humanitarian considerations into what had been a suspect criminal justice system.