Those who defend us on the frontline often have to defend themselves on the legal front as well. Despite their statutory rights to combat pay, compensation for injuries and proper discharge from the Armed Forces, servicemen and women often face unfair treatment and delays in payments. Violation of these rights can have serious consequences for their well-being and families.
The lawyers of Repeshko & Partners Law Firm commented on the legislation protecting the rights of the military, focusing on how to act in situations where their rights are violated: who is responsible and what steps should be taken to receive legitimate payments.
It should be noted that the problem of non-payment of military personnel has now become widespread. On the one hand, the larger the amount of state payments, the more the bureaucratic mechanism does not allow for quick and easy receipt of the money due. Let’s put it this way: if the state has even the slightest excuse not to pay the money, it will not be paid. But the failure to receive payments is not only the fault of the state apparatus. Most often, non-payment occurs due to errors in the accrual documents, or even their absence. In this case, the serviceman has the legal right to appeal against the non-payment of his or her salary.
In case of violation of the law, servicemen have the right to protect their rights during service in two ways
- administratively – by filing a complaint with the relevant official;
- in court – by filing a lawsuit.
These methods of protection have both advantages and disadvantages. The administrative procedure may be faster than the court procedure, but it is not always effective. However, we recommend that you go through the administrative procedure and, if you receive a refusal, go to court. This is worth doing at least because in the course of an administrative appeal, it may turn out that some documents are missing or improperly executed, which allows you to respond promptly and, if possible, put the documents in order. In court, after spending several months on litigation, one may find out, upon receipt of a court ruling, that some documents were not provided (although they were available), or some were not executed correctly, or that the available documents were not sufficient.
For example, in order for servicemen to receive compensation for their injuries, they must strictly follow the procedure set out in the law. Thus, you need to start by passing a military qualification commission. It is this commission that establishes the deterioration of health as a result of injury and determines the degree of fitness for further service. Everything seems simple and straightforward, but in practice, members of the MEC often do not indicate the real state of health of the serviceman in their decision, and the damage caused to his health is downplayed. In this case, it is necessary to appeal against the decision of the MEC, because the court does not have the authority to establish the state of health of a serviceman, the degree of fitness for military service and other issues of a purely medical nature.
The second important document in this case is a certificate from the military unit, which specifies the circumstances under which the injury was sustained. This certificate helps to trace the causal link between the deterioration of health and participation in hostilities. Therefore, you need to make sure that the data in the certificate is true and reflects the actual events.
In general, the main advice for those who have been injured is to keep in touch with your immediate commander throughout the treatment period and report any changes that occur. In addition, you should carefully keep all medical documents (Form 100, conclusions of the Medical Convalescent Hospital, the Medical Expert Commission, a certificate of the circumstances of the injury, etc.) or make copies or at least photos of those medical documents and conclusions that cannot be obtained in person. Without these documents, it will be very difficult to prove your right to payments in the future. Once again, it is important to check not only the availability of documents but also their content.
In general, for servicemen, the procedure for their appeals and service is regulated by the Disciplinary Statute of the Armed Forces of Ukraine and a separate procedure for reviewing appeals, as defined by the Instruction on the Organisation of Reviewing Appeals and Conducting Personal Reception of Citizens in the Ministry of Defence of Ukraine and the Armed Forces of Ukraine.
According to this Instruction, the decisions, actions (inaction) that may be appealed include the following actions, as a result of which
- violated the rights and legitimate interests or freedoms of a citizen (group of citizens);
- created obstacles to the exercise of rights and legitimate interests or freedoms by a citizen;
- unlawfully imposed any obligations on a citizen or unlawfully brought him/her to liability.
The right to appeal is exercised through a report, a type of official document of the Armed Forces of Ukraine. A report is analogous to a statement in civilian document circulation. A report is an oral or written appeal by a serviceman to a superior officer or rank setting out issues of a service or personal nature. A report is an opportunity for a serviceman to exercise his rights and interests and protect them. It is with a report that everything should begin.
A serviceman’s appeal must be considered within a reasonable time. To regulate the timeframe for reviewing reports, civilian legislation, in particular the Law of Ukraine ‘On Citizens’ Appeals’, is used. According to this law, appeals may be considered and resolved immediately, but no later than fifteen days from the date of receipt if they do not require additional study. The general term is one month and can be extended up to 45 days if necessary.
The first step to protect your rights is to file a report with your military unit commander. Thus, it is with the correct submission of the report by the serviceman that the process should begin:
- conducting an internal investigation and issuing a certificate of the circumstances of the injury;
- referral to undergo a military qualification examination;
- referral to undergo an MSEC;
- payment of additional remuneration for the period of treatment;
- discharge from military service for health reasons or family circumstances;
- provision of clothing;
- discharge from military service for health reasons
- payment of financial support;
- payment of one-time financial assistance;
- determining the status of a combatant.
If there is no proper response to a duly executed report, it is necessary to proceed to complaints. A proper response to a report is to receive a written response to the report, regardless of whether the response is positive or negative.According to the Statute of the Armed Forces of Ukraine, a refusal to resolve the issues set out in a proposal, application or complaint is communicated to the servicemen who submitted it in writing with reference to the legislation, stating the reasons for the refusal and explaining the procedure for appealing the decision.
The administrative procedure for appealing against non-payment by a serviceman can be implemented
- by appealing to his/her military unit commander to appeal the non-payment of funds;
- in some cases, to appeal against non-payment of , a serviceman should contact the financial service in his military unit;
- apply to the Ministry of Defence of Ukraine;
- apply to the Operational Command of the General Staff of the Armed Forces of Ukraine;
Please note once again that the quality of consideration of a complaint is influenced by the completeness and quality of the documents attached to it, which motivate the complaint.
In the event of a refusal to appeal under the administrative procedure, the only option to protect your rights is to go to court. The greatest hopes are placed on this instance as an impartial and legal institution.
This category of cases is dealt with exclusively by administrative courts. An administrative claim is filed with the district administrative court at the location of the military unit or the plaintiff’s place of residence. The statement of claim must be accompanied by documents confirming the claims, as well as a receipt for payment of the court fee or documents confirming exemption from it (military personnel may be entitled to exemptions). Thus, according to part 1 of Article 5 of the Law of Ukraine ‘On Court Fee’, the following are exempt from paying the fee
– persons with disabilities of groups I and II;
– servicemen, persons liable for military service and reservists called up for training (or testing) and special training – in cases related to the performance of military duty, as well as during the performance of official duties
– combatants, injured participants of the Revolution of Dignity, Heroes of Ukraine – in cases related to violation of their rights.
An administrative claim is filed with an administrative court in the form of a written statement of claim personally by the plaintiff or his/her representative (attorney).
The statement of claim may be sent to the administrative court by post.
The statement of claim must contain:
1) the name of the administrative court to which the statement of claim is filed;
2) the name (surname) of the plaintiff, postal address, as well as the number of the means of communication, e-mail address, if any
3) name (surname) of the defendant, position and place of service of the official or employee, postal address, as well as the number of the means of communication, e-mail address, if known;
4) the content of the claims in accordance with parts four and five of Article 105 of the CAPU and a statement of the circumstances by which the plaintiff substantiates his/her claims, and in case of filing a claim against several defendants, the content of the claims against each of the defendants;
5) if necessary, a request for exemption from payment of the court fee;
6) a list of documents and other materials to be attached.
In support of the circumstances that substantiate the claims, the plaintiff serviceman or servicewoman provides evidence of the circumstances of the case, and if this is not possible, he or she indicates the evidence that he or she cannot provide on his or her own, stating the reasons for the impossibility of providing such evidence.
The statement of claim shall also be accompanied by copies of the statement of claim and copies of all documents attached thereto, in accordance with the number of defendants and third parties. The statement of claim shall also be accompanied by a document confirming payment of the court fee, unless it is not required to be paid.
The military unit (the defendant in the case) has the right to file objections or other documents substantiating their position – they provide their arguments and objections if they believe that payments are not due or have been made in full.
The court considers all the evidence submitted, including documents, testimonies, certificates from the military unit, contracts of the serviceman, payroll records, etc.
The court may hear witnesses or representatives of the parties who give explanations about the circumstances of the case.
If the court finds that the serviceman was indeed not paid the money due, it satisfies the claim and obliges the military unit to pay the debt.
However, the court decision may also contain an obligation for the defendant to take certain actions.
After the court decision enters into force, the military unit must comply with the court decision and make payments.
If the military unit refuses to comply with the judgement voluntarily, the judgement is transferred to enforcement proceedings through the executive service for the purpose of enforced recovery.
