Date of publication: 7 April 2016
Irina Kirichenko, Patent Attorney of Ukraine
Recent tragic events in Brussels in March this year strongly suggest illusiveness of the peace in the whole world, and the threat of terrorism is becoming more and more topical even in the most trouble-free western countries. Our State, unfortunately, is not an exception to the rule – we met New Year with bated breath wishing that there will be no war! But so far the situation if the Eastern Ukraine is unstable and there is a high risk of renewal of warfare again.
Among the latest news this month was the official statement about new wave of mobilization. Firstly, the President of Ukraine, Petro Poroshenko signed the Decree on demobilization of soldiers and officers drafted during the 4-th wave of mobilization and, secondly, so far it goes about the 7-th wave and its particularities.
In particular, during his speech in front of the officers of the National Academy of Defense Petro Poroshenko stressed that during the next wave of mobilization it is planned to draft 5-10 thousand men: “Mobilization will be limited by the quantity of not more than 10 thousand soldiers”. Both military enlistment offices and the governors will have a possibility to scrupulously monitor the candidates in order not to enlist “avatars” to the army”, – said the President.
This year it will be the 1-st wave of mobilization. There were three mobilization waves in 2015 and three waves in 2014. According to the President during previous six waves of mobilization Ukrainian Military Forces drafted approximately 210 thousand military men.
The Ukrainian General Staff announces the seventh mobilization wave some time ago but had not defined exact date of its commencement. Ukrainian Minister of Defense, Stepan Poltorak, also made a prognosis that around 10-12 thousand men will be enlisted.
LEGAL GROUNDS AND RESPONSIBILITIES
Protection of the State, its independence and territorial integrity, is the constitutional obligation of Ukrainian citizens (Article 65 of the Constitution). Non-fulfillment of the said obligation, correspondingly, constitutes a criminal offence.
The legal regulation of relations between the state and citizens of Ukraine in connection with fulfillment by them of their constitutional obligations on protection of the State and general principles of serving the military duty are governed by the Law of Ukraine No. 2232-XII as of March 25, 1992 ”On military duty (hereinafter “the Law No. 2232-XII”).
Pursuant to Article 1(10)(2) of the Law No. 2232-XII the citizens of Ukraine registered as reservists by enlistment offices or serving their military service part-time are obliged to come, upon receipt of a draft notice from district (state) military enlistment office, for registration of military record documents, assignment, medical examination, referral for military training with the aim of getting or improving a military specialty, enlistment for service or reserve training.
What is related to dodging of the reservists from mobilization for service in the Anti-Terrorist Operation zone – the liability for this is stipulated by several articles of the Code on administrative violations and of the Criminal Code of Ukraine.
The Code on administrative violations stipulates fined for:
1) violation by the reservists or draftees of the legislation on military duty and service, namely: failure to appear to the military enlistment office without valid excuses or ill-timed provision of information about change of the place of residence, place of employment, position, as well as the procedure of training sessions (periods) (Article 210);
2) violation of legislation on defense, mobilization training and mobilization (Article 210(1)).
In its turn, the Criminal Code of Ukraine stipulates for the following types of violations. Pursuant to Article 335 evasion from being drafted to compulsory military service is punished with limitation of freedom for the period of up to three years.
Article 336 stipulates that evasion from being drafted under the mobilization process is punished with limitation of freedom for the period from two to five years.
Article 337, “Evasion from military registration or military exercise” stipulates for the following:
1) evasion of the person liable to military service from the military registration after the warning made by a corresponding military enlistment office shall be punishable with a fine in the amount of up to UAH 850.00 or correctional labor for the period of up to two years, or arrest for up to six months; 2) evasion of the person liable to military service from drill (or checkout) or special training shall be punishable with a fine in the amount of up to UAH 1 190 or arrest for up to six months;
At its Facebook page the Ukrainian General Staff announced the 7-th wave of mobilization. In particular, these announcement states the following: “As a result of demobilization of the 4-th wave there is a need to staff the Ukrainian Armed Forces. The staffing procedure shall be carried out on contractual, as well as mobilization basis. The more contracts shall be entered into the less it shall be required to mobilize reservists”.
The Ukrainian General Staff also reminded that the Army has performed optimization of military bases and combat practices, the army was supplied with new weapons and military equipment, salaries of a contract professional soldier constitutes around UAH 7 thousand and those serving in the ATO receive corresponding extra payments. “We rely on improvement of combat capabilities due to proficiency and availability of resources, but not to the quantity of staff. So, now it is possible to say that during the seventh mobilization wave less reservists will be enlisted”, – concluded the representatives of the Ukrainian General Staff.
The procedure of drafting the citizens to the military service and sending them to military bases is partly defined by the Regulation on preparation and performance of the enlistment of Ukrainian citizens to the military service and enlistment of draftsmen to the military service on contractual basis, approved by the Decree of the Cabinet of Ministers of Ukraine No. 352 as of March 21, 2002 (hereinafter – the Regulations). Pursuant to paragraph 72 of the Regulations corresponding authorities in corresponding districts (cities) establish special draft commissions to carry out enlistment of citizens to the military service. Also paragraph 74 of the mentioned Regulations defines that obligations vested onto the draft commissions are defined in Article 16 of the Law No. 2232-XII.
PERSONS SUBJECT TO THE DRAFT
As we informed earlier to mobilization subject are the persons who are liable for military service whose files are maintained by military enlistment offices. Those who was drafted (received a draft notice) must come to the military enlistment office. Also from the moment when mobilization is announced the mentioned persons must not change the place of their residence without the permit of the corresponding enlistment officer. Those who were not enlisted to the military service may be engaged to defense-related works (for example, construction of defensive fortifications, breaking the ground, medical attendance, and procurement of products) or enlisted to special-purpose formations.
Partial mobilization is announced and carried out in accordance with the special-purpose Decree issued by the President of Ukraine entitled “On Partial Mobilization” and the Law of Ukraine “On approval of the Decree of the President “On Partial Mobilization”.
In execution of the said Presidential Decree the chief enlistment officer at the district enlistment office DEO announces partial mobilization in the particular district and distributes draft notices to the persons subject to mobilization calling them to appear for military physical commission (MPC).
Medical examination is carried out according to the Decree approved by the Minister of Defense No. 402 as of August 14, 2008. The Regulation on military medical examination in the army, defining the health suitability to the military service of various kinds of groups of persons liable to military service, establishes the causative relationship of the illnesses, traumas (injuries, concussions, mutilations) and defines the necessity and the terms of application of medical and social rehabilitation and assistance to the military personnel.
Definition of the term military medical examination (MME) is provided in paragraph 1.2 of the Regulation. The main task of the MME, in particular, is to carry out selection of citizens of Ukraine healthily fit for the military service to be enlisted to the current army forces of Ukraine.
According to the results of the health examination the MME issues its resolution according to which a person may be declared fit(unfit) or partially fir for military service or mobilization to the armed forces of Ukraine.
based on the satisfactory resolution of the specialist of the mentioned MME the person is informed about the necessity to appear on certain time to the collection center to be sent to the military base in connection with enlistment to military service in the course of partial mobilization.
As it was mentioned above failure to appear without valid reasons is considered to be evasion from the mobilization draft and contains the signs of a criminal offense stipulated by Article 336 of the Criminal Code of Ukraine which envisaging responsibility as hard as deprivation of freedom.
MEDICAL CONTRAINDICATIONS FOR MOBILIZATION AND LAW ENFORCEMENT PRACTICE
The medical examination includes analysis of the state of health and physical development of citizens as of the moment of examination with the aim of defining the level of fitness for military service, training under military qualifications, settlement of other matters stipulated by the Regulations with provision of a written conclusion (declaration). Fitness for medical service under the Regulations means such state of health and physical development of citizens allowing them to perform obligations (stipulated by army regulations and instructions) on certain military occupation in the Military Forces of Ukraine and other military formations in peace and war time.
Medical examination is carried out by MPC with the aim of assuring the fitness, in particular, for military service of the youth of pre- and conscription age, persons liable to military service, reservists (candidates to the reserve).
The MPCs take their decisions on the basis of the list of illnesses, conditions and physical disabilities defining the level of fitness to the military service (Annex 1 of the Regulations) (hereinafter – the List of illnesses), explanations on application of provisions of the List of illnesses (Annex 2 to the Regulations) and tables of additional requirements to the state of health (Annex 3 of the Regulations).
According to the legislative and regulatory compliance practices medical opinion on fitness for military service may be appealed through the court.
According to the court decisions upheld as a result of consideration of an administrative claim filed against the head of the MPC at Kherson united city commissariat (hereinafter KUCC) on:
– acknowledgment of actions of the MPC at KUCC on issuing a decision on fitness for military service to be unlawful and illegitimate; – annulment of the resolution of the decree of the MPC at KUCC on issuing a decision on fitness for military service; – obligation to uphold a new decree in accordance with the current legislation of Ukraine under the results of undergoing of the medical examination by the claimant – in case of taking a competent approach and proper substantiation the decision of the MPC may be appealed.
While substantiating his claims the claimant stated that the MPC made a wrong conclusion on his fitness to the military service in the Military Forces of Ukraine as soon the commission wrongfully interpreted Article 39(b) of the Regulation on military medical examination in the Military Forces of Ukraine approved by the Order of the Minister of Defense of Ukraine No. 402 as of August 14, 2008, namely: the MPC wrongfully applied provision of Article 39(c) of the section II of the Regulation.
By the Decision issued by Kherson district administrative court as of May 27, 2015 the claim was sustained and the decree of the Head of the extraordinary permanent MPC at KUCC as of February 17, 2015 (on upholding a decision of fitness of a person for military service) was canceled and MPC at KUCC was obliged to uphold new decree in accordance with current Ukrainian laws under the results of undergoing a medical examination.
The court established that the claimant was acknowledged to be fit for military service with reference to Articles 39(b) and 41(c) of the List of illnesses.
In particular, graph I of Article 39(b) of the List of illnesses defines that according to this article persons – during their assignment to the draft offices, enlistment for the military service and their entry to military educational establishments, soldiers and officers undergoing regular military service are declared unfit for military service in time of peace or limitedly fit for service in time of war.
Graph I of Article 41(c) of the list of illnesses defines the similar conclusion of the military medical examination.
Thus, the decree on fitness of the claimant for military service does not comply with requirements of the Order of the Ministry of Defense of Ukraine No. 402.
HEAVY RESPONSIBILITY FOR IRRESPONSIBLE ATITUDE
However, intentional evasion from the military service in the Military Forces of Ukraine without substantiated reasons causes the criminal responsibility.
In the Unified register of court decisions one can really find recent examples of punishment of draftees in the form of deprivation of freedom for dodging the military service.
In particular, on January 14, 2016 Gorodischenskyi District Court in Cherkasy region, having reviewed in the open session of the court in town of Gorodishche the criminal proceedings on accusing a person liable for military service of committing a crime stipulated by Article 336 of the Criminal Code of Ukraine, established the following.
A man, being registered with Gorodishchenskyi district military commissariat and being liable for the military service (in connection with announcement of partial mobilization and enlistment for the military service in the Military Forces of Ukraine under mobilization procedures), passed a medical examination under the results of which was declared fit for the military service.
However, the accused “acting intentionally, with the aim of evading from the mobilization without substantiated grounds (under personal considerations), being aware of the socially dangerous nature of his actions, suspecting their implications and wishing their consequences, being fit for the military service and having no grounds for exemption from the draft under the mobilization procedures stipulated by Article 23 of the Law of Ukraine “On Mobilization Training and Mobilization”, declined further military draft under mobilization about which he made a written statement in his application to the military commissar of Gorodishchenskyi district military commissariat (DMC) and left the premises of Gorodishchenskyi DMC”.
Awarding a punishment to the suspect the court noted that he “violated his constitutional obligation of protecting the Homeland, its independence and territorial integrity. Being aware of the socially dangerous nature of his actions and wishing their consequences, he intentionally and purposefully performed actions directed at under-recruitment of the Military Forces of Ukraine and weakening of the defense system of the country”.
The court came to conclusion that in order to punish the person to correct him and make him aware of illegal nature of his actions s punishment in the form of deprivation of freedom must be applied.
However, in each concrete case the court defines the degree of the person’s guilt under the actual circumstances and, if the person cooperates with the investigation authorities, the court applies more subtle type of punishment without isolation of a person from society.
Thus, each person liable for military service does not have legal grounds to evade from the draft and may now decide whether it will be worthwhile to violate the law by intentionally failing to perform his constitutional duty and start his active social life with criminal conviction, even with a suspended one.
THE STATE BUDGET-2016 DOES NOT STIPULATE FOR SETTLEMENT OF COMPENSATIONS
There is also one question which is related to compensation by the employers of salaries to their employees who were mobilized.
Just before 2016 the Minister of the social policy, Pavel Rozenko, during his press-conference made a declaration about the absence of resources in the state budget stipulated for making compensation of salaries of mobilized employees of the enterprises, establishments and organizations. “The State used to allocate big amounts for this program and now, in 2016, the State has no additional 2 bln hryvnias to continue financing this program from its budget”, – said the Minister.
In this context one should pay attention to the decision upheld by commercial courts under the claims of PJSC Zaporizhzhia Ferroalloy Plant against the Ministry of Social Policy and the State Treasury Service of Ukraine (the third person – the Ministry of Defense of Ukraine) on settlement of compensation in the amount of UAH 2 230 000.00 for mobilization of employees to the army.
The reason of the conflict was refusal of the Ministry of Social Policy of Ukraine to compensate payments within the amount of the average salary of the mobilized employees (which constituted UAH 2 230 000.00) to PJSC Zaporizhzhia Ferroalloy Plant (which is a part of Privat business group).
No rejecting the essence of the stated claims the Ministry filed a motion in which it requested the court to cease the court proceedings in the case, as soon as this dispute is not subject to the review by commercial courts.
The court agreed that this dispute is not under the jurisdiction of commercial courts and by the Decision of the Commercial Court of Kyiv City as of November 27, 2015 the proceedings in the case 910/24502/15 were terminated based on Article 80(1)(1) of the Economic procedural court of Ukraine.
Not being in agreement with the said Decision PJSC Zaporizhzhia Ferroalloy Plant tried to appeal it by filing a statement of appeal requesting to dismiss the decision and transfer the case to the first instance court for consideration in essence.
In particular, in its statement of appeal the claimant stated that this dispute is under the jurisdiction of commercial courts by virtue of the fact that the list of its parties correspond to requirements of the Commercial procedure, the claims of the claimant are of proprietary nature as soon as include compensation of material damage inflicted by the State.
However, the judicial bench of the Commercial Court of Appeal agreed with conclusions made by the first instance court and defined, in particular, the following:
“As follows from the materials of this case the basis for filing a claim by PJSC Zaporizhzhia Ferroalloy Plant against the respondents is failure of the Ministry of Social Policy of Ukraine to compensate (from the state budget) payments made by the claimant in 2014 within the amount of average salary of employees drafted for the military service under mobilization procedures during the special period.
Article 119 of the Labor Code of Ukraine stipulates that the employees enlisted to the regular military service, military service under mobilization procedure, for the special period or drafted on the contractual basis (in case of an emergency threatening national security, declaration of the decision on mobilization and(or) introduction of the military emergency till the end of the special period or the day of his actual demobilization) save their places of employment, position and average salary at the enterprise, establishment, organization, farmers’ enterprise, agricultural cooperative regardless of the form of its subordination and ownership form, as well as at the companies of individual entrepreneurs with whom they were employed prior to enlistment.
Such employees receive monetary compensation at the expense of the State Budget of Ukraine according to the Law of Ukraine “On Social and Legal Protection of Military Servicemen and Members of their Families”.
The said provision applies to the citizens of Ukraine who, starting from March 18, 2014, were drafted to the military service based on the Decree of the President of Ukraine No. 303 as of March 17, 2014 “On Partial Mobilization” pursuant to the Law of Ukraine No. 1275-VII as of May 20, 2014.
However, by actually dismissing the claimant’s stated claims under the grounds of lack of jurisdiction of commercial courts over the dispute, judicial panel of Kyiv Commercial Court of Appeal stated that:
– the Ministry of Social Policy is the central body of executive power which activities are directed and coordinated the Cabinet of Ministers of Ukraine;
– compensation to the enterprise of average amount of salaries of its employees drafted to the military service constitutes public legal relations as soon as it is related to the exclusive competence of the State represented by its official bodies.
Hence, the dispute is question is in the jurisdiction of the administrative courts.
In particular, Article 3 of the Administrative Court Procedure Code stipulated that the case under the administrative jurisdiction is a public dispute, transferred for consideration of an administrative court, in which at least one of the parties is represented by an administrative body, a self-governance body, their official or corporate officer or another person exercising powers of authority on the basis of the legislation, including for execution of delegated powers.
In this particular case the Ministry of Social Policy (Respondent 1) is the subject of such powers of authority. Pursuant to the legislation the Ministry, in particular, is responsible for development and introduction of proposals for defining the amount of minimum amount of salaries; duration of labor hours and time off work; conditions of remuneration of the employees working at enterprises, establishments and organizations subsidized from the state budget; remuneration of military servicemen, soldiers and officers in accordance to the law.
According to the conclusion of the panel of judges the aforementioned functions of the central executive body are directly related to the subject matter of this dispute as soon as it is particularly the Ministry of social policy of Ukraine which responsible for defining the compensation of expenses on settlement of average salaries of employees drafted for the military service under the mobilization procedure during the special period. It means that the Respondent 1 has the status of the subject of powers of authority which performs administrative official functions (carries out certain activities) in relation to PJSC Zaporizhzhia Ferroalloy Plant. The mentioned functions also include settlement of the mentioned compensation.
Hence, in this case the claimant, acting under the procedure stipulated by Article 2(2) of the Administrative Court Procedure Code, had to appeal (under the administrative procedure) the decisions, actions or failure to act allowed by the subject of powers of authority, i.e. the Ministry of social policy of Ukraine. At the same time, by virtue of provisions of the Ministry of social policy of Ukraine, the burden of proof in relation to legitimacy of its failure to act lies with the Ministry of social policy of Ukraine as soon as among the tasks of the administrative courts is verification of legitimacy (legality) of decisions, actions or failure to act allowed by the subjects of powers of authority with consideration for the criteria indicated in Article 2(3) of the Administrative Court Procedure Code of Ukraine.
Suchwise, for the employers which are obliged to let their employees leave for participation in the Anti-terrorist Operation and which, at the same time, not only lose their qualified personnel for a long period of time, but also bear a great material burden on saving the salaries of their employees, it is worthwhile to consider (under the administrative procedure) the matter of legitimacy (legality) of decisions, actions or failure to act allowed by the subjects of powers of authority which among their other obligations, in particular, must take care of settlement of the monetary obligations of the state towards the military servicemen.