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Issue of Prescheduled Pension for Captured ATO Participants Remain Unsolved


Ivan Bozhko, attorney at Ilyashev & Partners Law Firm
Source: Ukrainian News

On January 4, 2017, the President of Ukraine Petro Poroshenko signed a Draft Law of Ukraine № 3252 “On Amendments to Certain Laws of Ukraine on Pension Provision to Separate Categories of Persons from among the Participants of Antiterrorist Operation”, which had been adopted by the Parliament of Ukraine as far back as October 2016.

This legal regulation amended the envisaged by the Law “On Obligatory State Pension Insurance” list of persons liable to early retirement by age. In particular, this list was joined by the participants of antiterrorist operations, and their surviving family members.

As our legislation does not contain the definition of antiterrorist operation participant, the abovementioned amendments shall be applied only to persons with the combatant status and their surviving family members (wives/husbands, given that they are not remarried, parents).

The procedure of combatant status awarding is envisaged in the Cabinet of Ministers of Ukraine Resolution № 413 as of August 20, 2014, “On the Approval of the Procedures for Combatant Status Awarding to Persons Who Defended the Independence, Sovereignty and Territorial integrity of Ukraine and Directly Participated in Antiterrorist Operation and its Logistic Support”.

Pursuant to these Procedures the combatant status is provided to the following two categories:

1) servicemen (reservists, enlisted) and employees of the Armed Forces, National Guard, State Security Service, Foreign Intelligence Service, State Border Service, State Special Transportation Service, servicemen of military prosecution offices, rank and file and command staff of ATO operational support units of State Fiscal Service, policemen, rank and file and command staff, servicemen, employees of the Ministry of Interior, State Special Communications Service, State Emergency Service, State Penitentiary System, other military formations under the laws of Ukraine, which defended the independence, sovereignty and territorial integrity of Ukraine and directly participated in antiterrorist operation, residing directly in the area of antiterrorist operation during the period of its conduct;
2) persons being a part of paramilitary formations that have been established or self-assembled for the protection of the independence, sovereignty and territorial integrity of Ukraine, directly participated in antiterrorist operation, its logistic support, residing directly in the area of antiterrorist operation during the period of its conduct, provided that these paramilitary formations according to the list defined by the Antiterrorist Center of State Security Service and the General Staff of Ukrainian Armed Forces have been included into the Armed Forces, Ministry of Interior, National Police, National Guard and other established under the laws of Ukraine military formations and law enforcement agencies.

Therewith, prior to September 08, 2016, in order to be awarded with combatant status the period of stay in the antiterrorist operations zone was irrelevant. This gap in the legislation led to so-called “military tourism”, when certain persons for weak reasons were assigned to the uttermost from combat duty regions and having been there only for a few hours eventually received the status of combatants. In such a way, this resulted not only in the obtainment by certain persons of unreasonable privileges, but also let certain officials to escape from lustration.

In order to fight against the abovementioned phenomenon, the Procedures for Combatant Status Awarding were amended with clause 2¹ in September, 2016. This clause defines that the corresponding status may be obtained in case of the participation in the antiterrorist operation during the period not less than 30 calendar days or upon the direct engagement or firefight with the adversary, conduct of intelligence operations that should be confirmed by the antiterrorist operation headquarters, getting injured – regardless of the numbers of days. Therewith, these amendments shall not apply to those who have already obtained the combatant status.

It is worth mentioning that the provision of the adopted draft law № 3252 is discretionary in nature – meaning that the early retirement constitutes the right of the relevant group of citizens and in order to implement it the person should express its will by filing an application on early retirements and pension with respect to the specified reasons providing the required documents (personally or through the representative acting under the power of attorney). In such a way, the assignment of pension to persons without such opportunities, in particular, to those being captured, remains open.

The implementation of the corresponding right may be discussed later after the enforcement of the Law, which is to come into effect in a month following the official publication of this legal regulation.

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