Thursday, March 29, 2018

An important ruling in Madrid

The Military Chamber of the Spanish Supreme Court in a judgment issued on March 28, 2018 rejected the defense of "superior orders" as a cause for exemption from responsibility. The plenary of Chamber Five, the Military Chamber, established in this judgment that in a democratic system, exemption of responsibility "for reasons of superior orders" is inappropriate for members of the military and the military police (guardia civil) since the legal system obligates an individual not to comply with an illegal order.

The Supreme Court reversed the lower court (Tribunal Militar Central), which had punished a low level guardia for the offense of inattention to service but in fact punished his superior, a higher level guardia, on the theory that the low level guardia was simply following orders. The low level guardia, who had failed to carry out his duties, was not punished.

The Military Chamber of the Supreme Court stated that in a democratic system this exemption from responsibility based on superior orders is inappropriate because this way of seeing things is based on an outlook derived from authoritarian systems.  The authoritarian system defends the person giving orders and when something is ordered it must be carried out even if it infringes upon the law and the  one who complied has no responsibility for having complied with the order.  This does not happen in a constitutional democratic system in which compliance with the law is what matters, and all authority is derived from the law.  It is not possible to hide behind an order when failing to comply with a law and to not bear responsibility, no one is above the law.

In addition, the Chamber stated that in the Spanish legal order "there is no duty of due obedience in which one must obey everything that is ordered, without bearing responsibility for what one has done."  The system which is followed is one of legal obedience, that is, there is an obligation to obey one's superior in relation to every order which is in accord with the law and as a corollary to disobey every order which is contrary to the law.  That does not mean that there is no duty of hierarchical obedience, and it is certain that the higher level guardia was superior to the lower level guardia.  Consequently, the higher level officer, as the superior, is the one who determines how the duty is to be carried out and the lower level guardia has no autonomous option as to how to carry it out.

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