The main condition for the payment of “combat” must be the performance of special combat tasks

When it comes to the payment of combatants belonging to our defenders, not only financial issues are brought to the surface, but also deep contradictions in the system of public administration. Bureaucratic obstacles, legal inconsistencies and inconsistencies in the actions of the responsible authorities create a situation where those who risk their lives for the sake of the country are left without adequate support. Despite the government’s promise to ensure that every service member is properly paid, in practice many of them face delays, underpayments or even denials of payments. This is not just a financial issue – it is a challenge to justice, when our heroes are forced to fight for their rights already on another front, where the enemy is bureaucratic institutions.

Lawyers of the “Repeshko and Partners” Bar Association commented on the main legal aspects that stand in the way of timely and full payments of combatants.

One of the biggest myths associated with military personnel that disturbs some ordinary citizens is the payment of so-called “combat” military personnel who are directly on the line of contact with the enemy. For some, such soldiers are desirable brides, for others, they are parents who finally began to pay such alimony that not only the mother of the child, but also a couple of relatives may not work. And for someone, it is a daily routine with a risk to life. Average citizens believe that those who joined the ranks of the Armed Forces of Ukraine immediately have a salary of 100,000 hryvnias. In order to clarify this controversial issue, it is necessary to consider this issue from a legal point of view.

Resolution No. 168 of the Cabinet of Ministers of Ukraine dated February 28, 2022 “Issues of certain payments to military personnel, rank and file officers, police officers and their families during martial law” states:

“To establish that for the period of martial law: servicemen of the Armed Forces, the Security Service, the Foreign Intelligence Service, the Main Intelligence Directorate of the Ministry of Defense, the National Guard, the State Border Service, the State Security Department, the State Service for Special Communications and Information Protection, the State Special Service of transport (hereinafter referred to as military personnel) who take a direct part in hostilities or the implementation of measures necessary to ensure the defense of Ukraine, the protection of the safety of the population and the interests of the state in connection with the military aggression of the Russian Federation against Ukraine, while being directly in the areas of their implementation, on in the territory of Ukraine temporarily occupied by the Russian Federation, in the territory between the positions of the defense forces and the positions of the troops of the aggressor state, an additional reward in the amount of 100,000 hryvnias is paid monthly in proportion to the time of participation in such actions and activities.

Payment of additional remuneration and one-time remuneration is carried out on the basis of orders of commanders (supervisors)”.

Therefore, the most contradictions arise in who exactly are those persons “who take a direct part in hostilities or the implementation of measures necessary to ensure the defense of Ukraine, the protection of the safety of the population and the interests of the state in connection with the military aggression of the Russian Federation against Ukraine, being directly in the areas of their implementation, in the territory between the positions of the defense forces and the positions of the troops of the aggressor state”. It is this wording that causes many disputes and attracts even more abuses.

From this point of view, we would like to introduce you to the indicative recent decision of the Supreme Court of Ukraine, namely, the decision of August 6, 2024 in case No. 400/10311/23. The Supreme Court of Ukraine passed a decision in which it clarified the conditions under which military personnel can claim to receive “combat” payments. He noted that the presence of a serviceman in the combat zone is not a sufficient reason for paying “combatants”. To receive such payments, it is necessary to perform special combat tasks and measures related to national security and defense, which must be confirmed by relevant documents, such as combat orders, orders or entries in the combat log.

This case concerned a serviceman who appealed to the court, believing that his military unit had illegally denied him “combat pay”. He justified his position by the fact that while on duty at checkpoints of the guard company in the area of ​​hostilities, protecting the population from armed aggression of the Russian Federation, he was injured. The military believed that this situation was a sufficient basis for the calculation of “combatants”. However, the courts of the first and appellate instances refused him to satisfy the claims. They justified their decision by the fact that there was no evidence of direct participation in hostilities, ensuring the implementation of measures for national security and defense, repelling and deterring armed aggression, while being directly in the areas of their conduct (implementation), in particular on the territory of Ukraine temporarily occupied by the Russian Federation , on the territory between the positions of the defense forces and the positions of the troops of the aggressor state and the execution of combat (special) tasks by the plaintiff was not provided.

Disagreeing with such a decision, the military man appealed to the Supreme Court, claiming that his participation in measures to ensure the defense of Ukraine, including being in the area of ​​hostilities, is a sufficient basis for receiving “combatants”.

The Supreme Court, having considered this case, concluded that serving at a checkpoint, even if it happens in the immediate vicinity of the place of hostilities, is not a direct participation in the implementation of national security and defense measures. Therefore, he refused to satisfy the serviceman’s demands, leaving the decisions of previous courts unchanged.

In making its decision, the Supreme Court of Ukraine noted the following:

“According to paragraph 1 of the Separate Order of the Minister of Defense of Ukraine dated March 25, 2022 No. 248/1298 (which was valid until June 1, 2022) under the term “direct participation of a serviceman in combat operations or ensuring the implementation of national security and defense measures, repelling and deterring armed forces aggression during the implementation of the specified measures” (hereinafter – combat actions or measures) should be understood as the performance of the following tasks by a serviceman:

– combat tasks as part of a military unit (subunit), which conducts military (combat) actions as part of created (active) groups of troops (forces) of the State Defense Forces (designated by the Commander-in-Chief of the Armed Forces of Ukraine or the Chief of the General Staff of the Armed Forces of Ukraine) in the area of ​​military operations (combat) actions;

– combat (special) tasks for the comprehensive support of the created (active) groups of troops (forces) of the State Defense Forces directly in the area of ​​conducting combat operations in accordance with combat orders;

– combat tasks of conducting the resistance movement in the territories of Ukraine temporarily occupied (captured) by the enemy;

– the task of conducting operational (military, special) intelligence in the area of ​​hostilities or in the territories of Ukraine temporarily occupied (captured) by the enemy;

– combat tasks to repulse an armed attack (fire attack) on protected objects, release such objects in the event of their capture or an attempt to forcefully take possession of weapons, military and other equipment (including outside the areas of hostilities) );

– combat tasks of searching, identifying and neutralizing subversive-reconnaissance groups, illegal armed formations (armed persons) (including outside the areas of hostilities);

– execution of combat missions to fire air targets (including outside the areas of hostilities);

– flights in the areas of hostilities, aerial combat (including outside the areas of hostilities);

– implementation of measures to withdraw forces and means from under enemy attack (including outside the areas of hostilities);

– execution of combat (special) tasks by ships, boats, sea vessels in sea and river water areas (including outside the areas of hostilities).

At the same time, the Supreme Court drew attention to the fact that according to the Law of Ukraine “On the Defense of Ukraine”, combat operations are considered to be the form of use of formations, military units, units (other forces and means) of the Armed Forces of Ukraine, other components of the defense forces to solve combat (special) tasks in operations or independently during repelling armed aggression against Ukraine or liquidation (neutralization) of armed conflict, performance of other tasks using any types of weapons (weapons); area of ​​military (combat) operations is a part of the land territory of Ukraine, air and/or water space determined by the decision of the Commander-in-Chief of the Armed Forces of Ukraine, on which military (combat) operations are and/or may be conducted for a certain period of time.

The assignment of combat tasks to units (elements of the combat order) is carried out by a combat order, during the conduct of combat (actions) or in other conditions of the combat situation – by a combat order. They are usually reported to unit commanders orally.

At the same time, the payment of an additional remuneration of up to 100,000 hryvnias per month is carried out at the place of stay of the serviceman on financial support (at the place of regular service of the serviceman), subject to documentary confirmation of the direct participation of the serviceman in the specified combat actions or activities.

The following documents serve as documentary confirmation of such participation: a combat order (combat order), a log of combat operations or a log of operational situation management (summary, urgent, non-urgent) or a combat report or post notice (during the protection of an object on which an armed attack was carried out ), a report (report) of the unit (group) commander on the participation of each serviceman (including from attached or operationally subordinate units) in combat operations, in the execution of combat operations, a log of operational situation management or a combat report, or a list of (special) tasks.

So, as we can see, the presence of a serviceman in the area of ​​hostilities in itself is not a sufficient reason for the payment of additional remuneration in the amount of up to UAH 100,000 per month provided for by Resolution No. 168. The key condition for the payment of such additional remuneration is the serviceman’s performance of special combat duties tasks and measures, which, in the meaning of Resolution No. 168, mean “the direct participation of a serviceman in combat operations or ensuring the implementation of measures for national security and defense, repelling and deterring armed aggression during the period of implementation of the specified measures” and confirming these circumstances with the specified documents.