Date of publication: 14 July 2015
Irina Kirichenko, Patent Attorney of Ukraine
On June 08, 2015 the President of Ukraine signed the Law of Ukraine No. 389-VIII “On the legal regime of martial rule” (hereinafter – “the Law on the martial rule”) which was officially published in the Parliamentary newspaper “Golos Ukrainy”. This law came into force on June 11, 2015, i.e. on the next day from the moment when it was published and directed at legislative coordination of the legal regime of martial rule with consideration for circumstances appeared because of the external aggression and conducting the anti-terrorist operation at the East of Ukraine.
We need to confess that for majority of us the notion of “martial rule” has although been an integral part of information “picture” of the day, but has not been directly related to our everyday life and security and has not actually involved the circle of our rights and obligations.
However, unusual, in particular for residents of Kyiv, “movie picture” may turn into reality anytime and, consequently, all us must be aware of our new rights and obligations (as well as limitations of our rights) if the martial rule is suddenly imposed in Ukraine or its separate parts.
Legal regime: increase of duties and limitation of rights
The President of Ukraine declares martial rule by signing and publishing a corresponding Decree subject to be approved by Verkhovna Rada of Ukraine. According to the explanatory note to the Law on martial rule extended and specified was the list of measures of the martial rule, in particular, it was found that in Ukraine or its separate areas where martial rule is introduced the military command together with the military administrations (if such are established) can (independently or with the assistance of the executive authorities, local self-government bodies) introduce and implement measures of the legal regime of martial rule, but only within the time limits of the constitutional rights and freedoms of a man and a citizen, as well as the rights and legitimate interests of legal persons provided for by the Decree of the President of Ukraine on introduction of martial rule.
At the territories where combat operations are conducted introduction and execution of measures of the legal regime of martial rule is provided to the military commanders and administrations.
Among the most essential limitations of rights of individual and legal persons imposed by the military are as follows:
- introduction of labor duty for people able to work and not directly engaged in the defense sphere and sphere of supporting people’s vital activities for the period of validity of martial rule with the aim of performance of defense works;
- compulsory expropriation of private and communal property, seizure of property owned by the state enterprises and state business associations for purposes of the state in conditions of the legal regime of martial rule under the procedure established by law. The law does not establish the types of property that can be expropriated – i.e. it can be movable (vehicles, equipment) and immovable property (buildings, constructions etc.). It needs to be taken into consideration that in case of compulsory expropriation a document of a standard form must be issued. The mentioned document must confirm the fact of compulsory expropriation of property and will serve as a basis for reimbursement of its cost in the future. One can find consolation in the fact that regarding the property of the state enterprises there is no compensation procedure;
- introduction of labor duty;
- powers of the military to use the facilities and labor resources of legal entities of all forms of ownership for defense use, change the regime of their work, introduce other changes to the production activities.
The said limitations actually stipulate the possibility of obtaining the absolute control of the military command over companies. Should such orders be ignored the chief officials ob the companies may be removed from their office and replaced with a deputy (as chosen by the military command or administration).
As for the pharmaceutical sphere the Law on the martial rule stipulates for establishment of the special regime in the sphere of manufacturing and sale of drugs containing narcotic and psychotropic substance as well as precursors, other potent substances list of which is established by the Cabinet of Ministers of Ukraine.
To endure performance of the principle “Everything for the Front, Everything for the Victory!” the military, in particular, have the following powers:
- to use the facilities and labor resources of legal entities of all forms of ownership for defense use, change the regime of their work, introduce other changes to the production activities as well as working conditions according to the labor laws;
- to apply compulsory expropriation of private and communal property, seize the property owned by the state enterprises and state business associations for purposes of the state in conditions of the legal regime of martial rule under the procedure established by law;
- to engage able-bodied persons to community-service works performed to satisfy the needs of the Military Forces of Ukraine, other military formations, law enforcement agencies and civil forces;
- to introduce for individual persons and legal entities a duty for lodging the military personnel, namely enlisted personnel, command staff, law enforcement officials, employees of civil defense bodies, evacuated population and for deployment of military bases, units and institutions;
- to inspect people’s documents and, if necessary, inspect their belongings, vehicles, luggage and cargo, offices and residential areas;
- to prohibit peaceful assemblies, rallies, marches and demonstrations, other mass public events;
- to remove the heads of the enterprises, institutions and organizations from their posts for improper execution of their obligations, to appoint deputy heads of enterprises, institutions and organizations.
The Law on the martial rule separately stipulates the competence and rights of the military towards mass media: to regulate their work, use their facilities and prohibit activities. It is understood that prohibition of activities of any mass media organization will depend on each particular case and situation.
According to the last paragraph of the explanatory note to the Draft Law passing of the Law on martial rule, in addition to introduction and accomplishment of measures of the legal regime of the martial rule, will contribute to “creation of conditions for normalization of and ensuring continuous realization of public authority at the territory where the martial rule was introduced and, as a result, to provision of services to population at corresponding administrative areas and cessation of crisis tendencies at the economic sector and social and political situation”.
However, regardless of the fact whether the martial rule will be introduced in the whole Ukraine or its separate territories important are the legal aspects related to drafting – mobilization.
Who does it relate to?
As soon as Ukraine has not seen mobilization since 1945 Ukrainian laws did not give a clear definition of the notion “a mobilized person” and, more importantly, did not regulate the rights and obligations of a person mobilized to the military service. Regulated were not the guarantees of the rights of the mentioned person on the party of the employer and the state.
Above all in Ukraine the draft notices and mobilization assignments may be received only by the persons liable for military service.
Pursuant to the Law of Ukraine “On military duty and service” No. 2232-XII as of March 25, 1992 (hereinafter – the “Law on military duty”) the category of persons liable for military service includes persons transferred to the reserve for staffing the Military Forces of Ukraine and other military formations for the corresponding period, as well as for performance of works directed at ensuring the state’s security.
Pursuant to Article 27 of the Law on military duty to the reserve transferred are the citizens of Ukraine physically qualified for military service in time of peace or war and not reached the limiting age of being enlisted to the reserve (under the general rule, 65 years old for men and 50 – for women). Such persons are registered with military authorities (military registration and enlistment offices and other military formations).
According to the Resolution of the Cabinet of Ministers of Ukraine No. 389 as of June 03, 2013 “On approval of provisions about military registration and enlistment offices” such offices are the local bodies of military command ensuring fulfillment of legislative requirements related to matters of military duty and service, mobilization training and mobilization at the special period of people and transportation resources at the corresponding territory.
The aim of military registration and enlistment offices is to carry out military commissioners conscription of citizens for military service in peacetime and wartime, to ensure the selection of candidates for admission to military service under the contract, to participate in the selection of citizens to serve in the military reserve of the Armed Forces, to prepare and conduct in the special period mobilization of human resources and transport, to ensure social and legal protection of servicemen, conscripts and reservists called up for training (or check) and special training in the Armed Forces, veterans of war and of military service, persons retired from the Armed Forces and members of their families, to participate in the military-patriotic education of citizens, to implement measures of preparation and performance of territorial defense, other activities on defense in accordance with the law.
Persons registered in the military registration and enlistment offices shall be liable for military mobilization. Those who was called (got the military draft notice) must appear to the military enlistment office, and such persons from the moment of mobilization are prohibited to change the place of their residence without the permission of the military commissioner. Those who are not called up for military service can be engaged to work related to defense activities (e.g., the construction of fortifications, digging trenches, nursing as a medic, harvesting products), or enrolled into special formations.
Dodging from mobilization may result in deprivation of freedom for the period from 2 to 5 years (Article 336 of the Criminal Code of Ukraine).
Categories of persons not subject to be enlisted to the military service in time of mobilization
Pursuant to Article 23 of the Law “On mobilization training and mobilization” 3543-XII as of October 21, 1993 (hereinafter – the “Law on mobilization”) such categories, in particular, include:
- included into the reserve for the period of mobilization and for the period of martial rule employees of the state authorities, other state bodies, local self-governing bodies, as well as other employees of enterprises, institutions and organizations;
- persons whom military physician boards declared temporarily unfit for military service for health reasons for the period up to six months;
- men who have three and more dependent children aged under 18;
- women and men who independently bring up their child aged under 18;
- women and men who have a dependent adult child – of 1-st and 2-nd group of invalidity, up to reaching by such child of the age of 23;
- adoptive parents, guardians, foster parents, parents child-minders who have dependent orphans or children deprived of parental care, at the age of 18 (only one child suffices);
persons engaged into care after the patients in need for care, in case of absence of other persons able to exercise such care;
- people’s deputies of Ukraine, deputies of the Supreme Rada of the Autonomous Republic of Crimea;
students and postgraduates engaged into full-time education.
Pursuant to the Decree of the Cabinet of Ministers of Ukraine No. 673 among the lawful excuses not to appear in military enlistment office is the death a close relative (which occurred within one week prior to reserve training), illness, as well as the necessity to take care after the sick husband, child or parents residing together with the person liable for military service (should there be no other such person). Failure to appear for the reserve training will not result in a criminal responsibility if a person is under criminal investigation, is passing state examinations to higher education establishments or is under the influence of force-majeure circumstances. Each of the mentioned circumstances must be confirmed by a corresponding document.
There are also categories of citizens who are subject to be excluded from military registration, in particular persons who:
- reached the limiting age of being enlisted to the reserve;
- ceased their Ukrainian citizenship;
- were previously sentenced to imprisonment for serious or extremely serious crime;
- were sent for serving a sentence at special penitentiary facilities or to whom special medical enforcement measures may be applied;
- until the age of 40 failed to receive a military occupational or similar specialty;
- were declared unfit for military service by military physician boards with taking off from the military registration.
As soon as the matter of being declared for the military service is related to a number of legal and medical aspects we will highlight them in the next part of the Article where we will examine the examples of regulatory practices of reviewing administrative cases related to appealing the conclusions (declarations) of military physician boards on being (un)fit for military service.