Wednesday, November 4, 2020

Act of service doctrine applied in Spanish decision

The military chamber of the Shupreme Court of Spain has decided a case concerning when misconduct -- here, sending text messages to another soldier while on maneuvers in Poland -- qualifies as an "act of service" for purposes of military jurisdiction. In a nutshell, when a soldier is on maneuvers, even conduct that takes place during periods of rest is covered. Excerpt from this account in El Confidencial Digital:
They point out that "the Chamber can only confirm the correct judgment of the Court of First Instance," which had held that "the typical action was developed during the conduct of military exercises carried out in Poland at the end of May 2016, the country where the three defendants were found but not the victim, who remained in Spain.”
For this reason, “the behavior of the accused must be deemed to have been carried out in the act of service since, in the conduct of military maneuvers, those who participate in them are in a permanent status of act of service without any distinction as to the moment of the act of service, whether in a period of activity or rest ”.
In the opinion of the Fourth Territorial Military Court, "the defendants were in the performance of an act of assigned service, such as the development of the aforementioned military maneuvers abroad," since for the purposes of article 6 of the Military Penal Code, "acts of service all those related to the functions that correspond to each soldier in the fulfillment of their specific tasks; and in this case, without a doubt they were, since they were in the course of an assigned mission ”.
Referring to a 1999 decision:
On that occasion (decision of November 19, 1999) the Supreme Court indicated that it must be understood that “all the activity carried out during the conduct of military maneuvers in the National Field of San Gregorio de Zaragoza, since there is no doubt that such military maneuvers, from their initiation to their completion, constitute a whole that, in its entirety, can only be classified as an 'act of service,' in the sense in which it is understood as such in legal conceptualization ”.
This was considered, without being an obstacle to the fact that, as is normal, the soldier tried in that case “during the exercises interspersed, as required, rest periods with other tactical or specific periods of the aforementioned military maneuvers, which, we hold, constitute continuous military activity, that is, an 'act of service,' from the beginning to the end of those activities ”.
Now the Supreme Court confirms that the events that occurred during a period of rest during military exercises are considered to have been committed while on duty.

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