Article 402 of the Criminal Code of Ukraine – Lawyer in the case of disobedience to command and refusal to execute an order in wartime

Under the prolonged legal regime of martial law, compliance with military discipline and the execution of commanders’ orders are crucial to the defence capability of the state. Legal practice shows that criminal proceedings based on Article 402 of the Criminal Code of Ukraine are among the most complex categories of cases in the field of military justice.

In such proceedings, qualified legal defence provided by the Law Firm «Prikhodko & Partners» helps prevent judicial errors and bias on the part of pre-trial investigation authorities and military prosecutors, while ensuring an objective assessment of all the circumstances of the incident. Under applicable law, every service member is entitled to the full and impartial protection of their rights, particularly when accused of serious military criminal offences.

What Does Article 402 of the Criminal Code of Ukraine Provide?

Article 402 of the Criminal Code of Ukraine establishes criminal liability for insubordination, namely an open refusal to carry out a superior’s order, as well as any other intentional failure to comply with a lawful order. This provision applies only where the order was lawful and the service member was aware of their duty to comply with it.

The term “insubordination” means a deliberate failure to comply with a lawful order issued by a commander. At the same time, the law requires proof of intent and the presence of all elements of the criminal offence.

Elements of the Criminal Offence

For an act to fall within the scope of this Article, it must contain all mandatory elements of the criminal offence. The objective element may take either of the following forms:

1. An open refusal to carry out an order — where a service member demonstratively states, orally or in writing, that they are unwilling to obey.
2. Another intentional failure to comply with an order — where there is no express refusal, but the order is ignored, thereby effectively preventing its execution.

The subjective element necessarily requires direct intent: the person understands that the order was issued by an authorised superior, understands its content, but consciously decides not to comply with it. The motives may vary, including fear, disagreement with tactics or family circumstances. However, they are generally not decisive for the legal classification of the offence, although they may be considered by the court when determining the sentence.

Difference from Other Military Criminal Offences

Insubordination must be clearly distinguished from related military criminal offences. For example, failure to comply with an order due to negligence or carelessness is classified under Article 403 of the Criminal Code of Ukraine. The principal difference lies in the form of guilt: under Article 403, there is no intent to disregard the commander’s will, as the person may have forgotten the order, misunderstood it or acted inattentively.

Insubordination should also not be confused with desertion (Article 408) or unauthorised absence from a military unit (Article 407). In cases of insubordination, a service member may remain at the unit’s location but refuse to perform a specific service assignment. Incorrect legal classification by investigative authorities is a common problem that a criminal defence lawyer can promptly identify and address through a detailed review of the case materials.

What Penalty Is Provided Under Article 402 of the Criminal Code of Ukraine?

The penalties for insubordination by a service member vary significantly depending on the circumstances, the number of persons involved and the period during which the offence was committed. The legislation provides for a strict differentiation of penalties. According to the Criminal Code of Ukraine, liability is determined as follows:

In most cases arising during martial law, Part 4 applies, which classifies the offence as serious. Legislative amendments introduced in recent years have significantly restricted the courts’ ability to impose suspended sentences with probation on service members. Therefore, the risk of actual imprisonment is high.

When Is Refusal to Carry Out an Order Not a Criminal Offence?

The legislation clearly establishes that the principle of unity of command is not absolute and must operate exclusively within the law. Pursuant to Article 41 of the Criminal Code of Ukraine, an act is not considered a criminal offence if it was committed in compliance with a lawful order or instruction. Conversely, carrying out a manifestly criminal order entails criminal liability on general grounds.

A service member has the legal right to refuse to carry out an order issued by their command where any of the following circumstances apply:

• The order is aimed at committing a criminal offence, such as violence against civilians, looting or the killing of prisoners of war.
• The person who issued the order did not have the relevant authority and was not the service member’s direct or immediate superior.
• The order was issued in clear violation of the prescribed procedure or contradicts the principles of international humanitarian law.

A separate issue concerns the service member’s state of health. The experience of the lawyers at Prikhodko & Partners shows that, in many cases, a refusal is caused by the service member’s serious physical or psychological condition, which was not properly documented by the Military Medical Commission (MMC). If a service member is objectively unable to carry out an assignment due to an injury or acute illness, the elements of the criminal offence of insubordination may be absent, since there is a physical impossibility of complying with the order.

What Evidence Is Relevant in Insubordination Cases?

In criminal proceedings concerning insubordination, the evidence is of decisive importance.

The following evidence is most commonly used:

• written orders;
• combat orders;
• combat logs;
• official documentation;
• video recordings;
• witness statements;
• internal investigation materials;
• expert opinions.

A lawyer assesses the admissibility of each piece of evidence, verifies whether it was obtained lawfully and identifies procedural violations that may affect the outcome of the case.

The following materials may also be useful:

• appealing a notice of suspicion;
• legal defence of service members;
• participation of a lawyer during questioning;
• criminal proceedings in the military sphere.

Court Practice Under Article 402 of the Criminal Code of Ukraine

Court proceedings in insubordination cases involve a high degree of responsibility. Legal practice confirms that, where the defence is properly organised, courts often take mitigating circumstances into account. For example, this may apply where the accused is a veteran with military awards, suffers from chronic illnesses, or where the order was issued in circumstances in which the unit was surrounded without adequate fire support.

A thorough analysis of court decisions shows that, where procedural violations were committed during the investigation, including failure to properly document the refusal or breaches of the procedure for serving a notice of suspicion, it may be possible to have the case returned for further investigation or to obtain an acquittal. Organising an effective defence at the court stage requires in-depth knowledge of military law and criminal procedure.

Cost of Legal Services in Cases Under Article 402 of the Criminal Code of Ukraine

Each accusation of insubordination is unique and requires an individual calculation of the cost of legal assistance. The fee is determined transparently and depends on several factors, including the stage of the pre-trial investigation or court proceedings, the location of the military unit and the court, the volume of case materials, and whether the lawyer must travel to the scene.

An accusation of insubordination during martial law is a serious legal challenge that may result in a lengthy term of imprisonment. At the same time, the law provides service members with mechanisms to protect their honour, dignity and liberty where there has been a misunderstanding, an objective inability to carry out an assignment, or the issuance of an unlawful order. Our practice shows that involving an experienced lawyer at an early stage helps stabilise the situation, protect the accused and ensure strict compliance with procedural requirements throughout the investigation.

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