With the beginning of military operations on the territory of Ukraine, law enforcement practice has undergone significant changes. Not only the perception of certain legal norms has changed, but also their implementation itself in court decisions and explanations from competent authorities. Today we are faced with new legal issues that would not even be considered in peacetime. The importance of the correct interpretation of laws and their application in military conditions becomes especially relevant, as new cases appear every day that require quick decisions and precise legal regulation.
Lawyers of the “Repeshko and Partners” Bar Association commented on the legal regulation of current military issues, taking into account court decisions that were recently adopted.
The longer the hostilities continue on the territory of our country, the more various questions arise in the practical sphere. At the same time, the practice of applying some norms of the law changes depending on judicial practice or individual explanations of the competent authorities. For now, once again, information on some military issues.
The possibility of issuing a postponement of the draft in the case of the disappearance of the father during the war in the absence of a court decision on recognition as missing
Practicing in military law, lawyers insist that if the father has disappeared during the war, but does not have the corresponding court decision on recognition of the person as missing, the son still has the right to a postponement of the draft.
The fact is that there is a separate law in the legislation – “On the legal status of persons missing under special circumstances”, which provides for the status of persons missing under special circumstances.
According to Art. 1 of this law:
- a person who has disappeared is considered a natural person, in respect of whom there is no information about his whereabouts at the time the applicant submits an application for his search;
- a person who went missing under special circumstances is considered to be a person who went missing in connection with an armed conflict, hostilities, temporary occupation of a part of the territory
of Ukraine, emergency situations of a natural or man-made nature.
In addition, according to this law, a person acquires the status of missing under special circumstances from the moment of entering the information about him, contained in the statement about the fact of disappearance, into the Unified register of persons who have disappeared under special circumstances, in the manner provided for herein by law, and is considered to have disappeared under special circumstances, from the moment the applicant submits a statement about the fact of the person’s disappearance. A person is considered missing under special circumstances until the search for him is terminated in accordance with the procedure provided for by this Law.
Therefore, in order to acquire the status of a missing person, he or she must be registered in the Unified Register of Persons Missing Under Special Circumstances. But this does not in any way limit relatives or other persons in their appeal to the court with an application to recognize such a person as missing or to declare him dead in the manner provided by the legislation in the order of a separate proceeding.
The fact is that the Law of Ukraine “On the Legal Status of Persons Disappeared Under Special Circumstances” has been in the legislation since 2018, and the rule regarding the possibility of declaring a person missing or declaring him dead has always existed in the legislation, even in Soviet times. Therefore, we currently have the regulation of the same issue by different laws that partially overlap and regulate the same issues, but slightly differently.
Thus, already from the moment of entering information into the Unified Register of Persons Disappeared Under Special Circumstances, a person is considered to have disappeared under special circumstances.
Resolution No. 560 of the Cabinet of Ministers of Ukraine dated May 16, 2024 “On approval of the procedure for conscription of citizens for military service during mobilization, for a special period” sees this situation in a completely different way. According to this resolution, it is impossible to issue a postponement without submitting a court decision to recognize a person as missing. Guided by it, the TCC and SP require a court decision to recognize the person as missing. So, we have the law on one side of the scales, and the decision of the Cabinet of Ministers on the other. However, we emphasize that the law has higher force than the resolution, especially since it is a norm of direct regulation.
The only way out of this situation is to file an appropriate lawsuit in court if the TCC and SP refuse. But what exactly to deal with – with an appeal against a refusal or with a statement that a person is recognized as missing, it must be decided in each specific situation. Some cautious lawyers recommend going to court on both grounds at the same time. And there everything depends on which court will consider which case faster, because the lawsuit asking the court to declare the refusal to grant a postponement illegal and the obligation to grant a postponement is considered in the order of administrative proceedings, and the application to recognize a person as missing is in the order of civil judicial proceedings in a separate proceeding. The first documents on these cases have already been sent to the court, we are waiting for court practice.
Postponement from mobilization in connection with the independent upbringing of a child
We would like to note that the practice on this issue was quite diverse until the Law of Ukraine “On Mobilization Training and Mobilization” was adopted, which clearly defines the grounds for receiving a postponement from mobilization on the specified grounds.
Yes, conscripted women and men who have a child (children) under the age of 18 are not subject to conscription for military service during mobilization, if the other parent of such child (children):
- died
- deprived of parental rights
- recognized as missing or unaccountably missing
- declared dead
- is serving a sentence in prison
- the person independently raises and supports the child according to the court’s decision
- the entry of the father of such a child in the Birth Registration Book is made on the basis of the first part of Article 135 of the Family Code of Ukraine
Documents confirming the right to postponement in such cases must be:
- to confirm the child’s status – an extract from the decision of the local authority to grant the child(ren) the status of an orphan or a child deprived of parental care
- for foster carers — the decision of the district, district in Kyiv state administration, the executive body of the city, district council in the city on the placement of a child in the family of a carer and the child’s birth certificate
- for guardians, custodians – a decision of a local authority or a court decision on the establishment of guardianship, guardianship and a child’s birth certificate
- for adoptive parents – a court decision on adoption and a child’s birth certificate
- for adoptive parents — a decision of a local authority on placing a child in a foster family or an agreement on placement of children for joint residence and upbringing in a foster family, a child’s birth certificate
- for parents-educators — the decision of the local authority to place the child in a family-type orphanage or an agreement on the organization of the activities of a family-type orphanage, the child’s birth certificate
In turn, we would like to remind you that the father of three minor children does not always have the right to postpone mobilization. Parents of three children do not have the right to deferment if:
- there is arrears for the payment of alimony, the total amount of which exceeds the amount of payments for three months.
- the father does not live with his children and does not pay alimony at all.
- the husband raises the adopted child, but the biological father pays child support.
So, as we can see, the key point is not so much the fact of having three or more children, but the fact that the father maintains these children.
How to get the status of a family member of the fallen Defender or Defender of Ukraine
Unfortunately, military deaths are an integral part of any war. After the initial shock and pain, the reasonable question of what to do next and what the state can do in such a case arises. In Ukraine, there is the status of a family member of a deceased defender of Ukraine. The list of those entitled to it is specified by the Cabinet of Ministers of Ukraine.
The following can apply for the status of a family member of the deceased:
- Families of servicemen who died (missing) died as a result of injury, contusion, mutilation or disease while defending the country during the war with the Russian Federation, namely:
- troops of the Armed Forces;
- Territorial defense forces;
- National Guard;
- Security Services of Ukraine;
- Foreign intelligence services;
- State Border Service;
- State Special Transport Service;
- Military Prosecutor’s Office;
- State Fiscal Service;
- Ministry of Internal Affairs;
- Department of State Security;
- State Special Communications;
- State emergency services;
- State Criminal Enforcement Service;
- persons who were part of the voluntary formation of the territorial community;
- other military formations formed in accordance with the laws that participated in measures necessary to ensure the defense of Ukraine.
- Families of employees of enterprises, institutions and organizations that were involved in the implementation of measures necessary to ensure defense.
Family members of the dead, dead and missing include:
- dependents of the deceased or the missing person, to whom a pension is paid in connection with this;
- parents;
- one of the spouses who has not remarried, regardless of whether a pension is paid to him or not;
- children who do not have and did not have their families;
- children who have their own families, but became persons with disabilities before reaching adulthood;
- children whose parents are both dead or missing.
In order to obtain the status of a family member of the deceased Defender of Ukraine, it is necessary to collect and submit a package of documents to the social protection authorities at the place of registration.
For family members of persons who were members of the regular army:
- the original and a copy of the applicant’s passport;
- the original and a copy of the registration number of the taxpayer’s registration card (RNOKPP) of the applicant;
- 3×4 photo of the applicant;
- for children of the deceased: birth certificate of the applicant;
- for parents of the deceased: birth certificate of the deceased;
- for the wife/husband of the deceased: marriage certificate;
- for children of the deceased who do not have and did not have their own families: certificate from ZHEK form 3;
- for the children of the deceased, who became persons with disabilities before reaching adulthood: certificate of the medical and social expert commission on disability;
- a death certificate (copy) or notification of the death of a person;
- documents on the direct participation of a person who defended Ukraine and died (missing), died as a result of an injury, contusion, mutilation or disease received during direct participation in measures necessary to ensure defense (decision of the full-time military medical commission of the relevant military formation) .
For family members of persons who were part of the voluntary formation of the territorial community:
- the original and a copy of the applicant’s passport;
- the original and a copy of the registration number of the taxpayer’s registration card (RNOKPP) of the applicant;
- 3×4 photo of the applicant;
- for children of the deceased: birth certificate of the applicant;
- for parents of the deceased: birth certificate of the deceased;
- for the wife/husband of the deceased: marriage certificate;
- for children of the deceased who do not have and did not have their own families: certificate from ZHEK form 3;
- for the children of the deceased, who became persons with disabilities before reaching adulthood: certificate of the medical and social expert commission on disability;
- death certificate (copy);
- Territorial defense volunteer contract (copy);
- documents on direct participation in measures necessary to ensure the defense of Ukraine, a person who died (missing), died as a result of an injury, contusion, mutilation or disease received during direct participation in measures necessary to ensure the defense of Ukraine, a forensic medical opinion examinations
The decision to establish the status of a family member of a deceased military person is made by the social protection authorities of the population at the registered place of residence within a month from the date of submission of the documents.
We note that the absence of the documents listed above and their inauthenticity are grounds for refusing to grant the status of a family member of a deceased soldier.
