What relatives of missing servicemen should know: mobilization and payments

When a service member goes missing, his family finds themselves in a difficult situation filled with uncertainty and pain. This is not only a huge emotional upheaval, but also a legal complexity that requires clarity and the right actions. Relatives who are faced with such a tragedy often do not know where to start, what their rights are and what steps to take.
IA “FAKT” turned to the lawyers of the “Repeshko and Partners” bar association for comments on important aspects of legal protection of family members of missing soldiers, in particular, the mechanism of mobilizing relatives and the procedure for receiving payments, which families face in this difficult time. We aim to provide our readers with practical advice and useful information to help resolve these important issues. So what do the lawyers say.
Many families whose loved ones have gone missing ask us for legal assistance. We understand that this situation is extremely difficult and painful. The first thing to understand is that you have legal rights and protection mechanisms. As of now, almost 40,000 people are officially considered missing in Ukraine. These are children, civilians, and military personnel. Unfortunately, the real numbers may be much higher, since there are lonely people who lived on the contact line, there are people who remained in the occupation and their fate is currently unknown. As for military personnel, in this case, disappearance does not necessarily mean the death of a person. There are those who were captured by the Russian Federation, but with whom communication is impossible now. There are rare cases when a serviceman is in captivity, but neither the Ukrainian authorities nor the relatives of the captive know about it. In connection with the relevance of this issue, we will consider the algorithm of actions and the consequences of the disappearance of this particular category of citizens.
In addition to directly searching for a missing relative, obtaining the status of a missing person is also necessary to settle a number of issues. Yes, the following are not subject to conscription for military service during mobilization, for a special period:
– women and men whose close relatives (husband, wife, son, daughter, father, mother or biological (consanguineous) brother or sister) died or went missing during an anti-terrorist operation from among:
– servicemen or employees of military formations formed in accordance with the laws of Ukraine, which protected the independence, sovereignty and territorial integrity of Ukraine, who died or went missing during direct participation in an anti-terrorist operation, ensuring its conduct, being directly in the areas of the anti-terrorist operation during its conduct;
– employees of enterprises, institutions, and organizations who were involved in ensuring the conduct of an anti-terrorist operation and died or went missing while ensuring the conduct of an anti-terrorist operation directly in the districts and during its implementation;
– persons who died or went missing during direct participation in the anti-terrorist operation, ensuring its implementation, being directly in the areas of the anti-terrorist operation during its implementation as part of voluntary formations that were formed or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine, provided that in the future such volunteer formations were included in the composition of military formations and law enforcement agencies formed in accordance with the laws of Ukraine;
– persons who died or went missing during direct participation in an anti-terrorist operation, ensuring its implementation, being directly in the areas of its implementation as part of voluntary formations that were formed or self-organized to protect the independence, sovereignty and territorial integrity of Ukraine, but in the future such volunteer formations were not included in the composition of military formations and law enforcement agencies formed in accordance with the laws of Ukraine and performed the task of anti-terrorist operations in cooperation with military formations and law enforcement agencies formed in accordance with the laws of Ukraine;
– women and men whose close relatives (husband, wife, son, daughter, father, mother or biological (consanguineous) brother or sister) died or went missing during the implementation of measures to ensure national security and defense, repel and deter armed aggression by Russia Federation in the Donetsk and Luhansk regions, as well as during the provision of national security and defense, repelling and deterring armed aggression against Ukraine during martial law.
Also, in case of disappearance of a serviceman, payments in the amount of his official salary at the last place of service, salary according to military rank, allowance for years of service and other types of financial support are kept for him. Family members have the right to receive such a monthly payment. In accordance with Clause 6 of the Resolution of the CMU of November 30, 2016 No. 884 “On Approval of the Procedure for Payment of Financial Support to the Families of Servicemen Captured or Hostaged, as well as Interned in Neutral States or Unaccountably Absent”, in all cases payment of financial support is carried out no later than the day the serviceman is removed from the personnel lists of the military unit (institution, organization).
There are many other benefits and payments provided for this situation, but we have listed the most relevant ones.
Therefore, it is necessary to act in two directions:
- Contact the territorial center of recruitment and social support through which the missing person was mobilized. In turn, the TCC and SP send a written request directly to the military unit where the serviceman served, in order to receive official information on the status of the missing person based on the results of the official investigation.
- Apply to the territorial unit of the National Police to submit a search for a missing person under special circumstances. Along with the acceptance of the application, relatives may be offered to submit biological samples for molecular genetic examination. At the same time, the police open a case for each report on the disappearance of a person, which is registered in the Unified Register of Pre-Trial Investigations. Be sure to get an extract from the EDPR – it will indicate the number of the criminal proceedings, the body that accepted the application. One more point – the faith of the police should be required to enter information into the Unified Register of Persons Disappeared Under Special Circumstances
The fact is that the Law “On the Legal Status of Persons Missing Under Special Circumstances” is currently in force in Ukraine, which defines the legal status of persons missing under special circumstances and provides legal regulation of social relations related to the acquisition of legal status of persons , missing under special circumstances, with registration, search and social protection of such persons and their family members. At the same time, armed conflict, military operations, temporary occupation of part of the territory of Ukraine, emergency situations of a natural or man-made nature are considered special circumstances.
On the basis of this law, the Unified Register of Persons Missing Under Special Circumstances operates – an electronic database designed for the storage, protection, processing, use and dissemination of information defined by this Law about persons who have disappeared under special circumstances, their unidentified remains, presence or absence a court decision on recognition of missing persons, missing or declared dead, as well as other data used to ensure registration of missing persons for the purpose of their search.
Next, problems begin for the relatives of the missing serviceman in terms of obtaining a deferment from the draft. According to the previously mentioned law, there is a concept of “a person who has disappeared under special circumstances” and according to the norms of civil legislation – “a missing person”. The fact of confirmation of the first status is precisely the certificate from the Unified Register of Persons Disappeared Under Special Circumstances. The second status is obtained by a court decision, and this is a rather lengthy procedure that takes place with the participation of a judge and two juries. Two different concepts, two different statuses. This is where the first trick of the situation lies.
Relatives of a missing person must, according to current regulations, submit a statement, documents confirming family ties and a court decision on declaring a person missing under special circumstances to the statement submitted to the TCC and SP, as specified in the resolution of the CMU of May 16, 2024 No. 560 “On approval of the Procedure for the draft of citizens for military service during mobilization, for a special period”.
It should be noted that from the moment information about the disappearance of a person is entered into the register, such a person acquires the status of missing under special circumstances, 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. In this way, the person receives the status officially confirmed by administrative means.
Resolution No. 560 requires the relatives of a missing soldier to establish the same fact, but in court. At the same time, it is not possible to obtain a court decision that would have the wording: “Recognize Pyotr Mykolayovych Sydorenko as having disappeared under special circumstances.” It can only sound as follows: “Recognize Pyotr Mykolayovych Sydorenko as missing”, as provided for in Article 305 of the Civil Code of Ukraine. But TCC and JV, according to the current regulations, requires a decision that would sound as indicated in the first option.
These circumstances make the already difficult life of missing servicemen more difficult.
In connection with this conflict of current norms, the TCC and the SP usually deny the relatives a postponement, demanding a court decision, which is actually impossible to obtain. There are currently two ways to solve this problem, which unfortunately require time and patience:
- Submit an application to the court to declare a person missing. Obtain a court decision, which will refuse to grant the specified application. Get an extract from the Unified Register of Persons Disappeared Under Special Circumstances. The court decision and an extract from the Register must be submitted together with the application for postponement to the TCC and JV. To receive from the TCC and the JV a refusal to receive a deferment and to submit to the administrative court a statement of claim for recognition of illegal actions of the TCC and the JV and the obligation of the latter to consider the application for granting a deferment from the draft.
- Do not go to court and do not receive a decision to recognize a person as missing. Immediately obtain an extract from the Unified Register of Persons Disappeared Under Special Circumstances. The extract from the Register must be submitted together with the application for deferral to the TCC and the JV. To receive from the TCC and the JV a refusal to receive a deferment and to submit to the administrative court a statement of claim for recognition of illegal actions of the TCC and the JV and the obligation of the latter to consider the application for granting a deferment from the draft.
It is not yet clear which way to go more effectively, but we note that the second way is shorter in time and has more weighty evidence.
The second subterfuge follows from the following – they are not excluded from the personnel lists of the military unit, but are counted as temporarily absent persons: who have disappeared – until they are recognized in a court of law as missing or declared dead, which is provided for in clause 16 of the Order of the Ministry of Internal Affairs dated 15.09.2022 No. 280 “On the approval of the Instruction on the organization of personnel accounting in the system of the Ministry of Defense of Ukraine.” Therefore, in the event that a person is recognized as missing or declared dead in a court of law, which entails the mandatory exclusion of such a serviceman from the lists of a military unit. Exclusion of a serviceman from the personnel lists of a military unit automatically means the termination of payments to family members.
Thus, the family is faced with a choice – receiving financial support or receiving a deferment from mobilization. Judicial practice on these issues does not yet exist, as the Supreme Court of Ukraine has not yet reached the cases that may be under consideration by the courts of the first and second instance, and therefore some time is needed for the formation of judicial practice. However, this does not prevent the relatives of the missing soldier to apply to the court in case of termination of the payment of financial support and personally start forming legal practice.
We would like to note that it is really very sad and shameful for the relatives of the servicemen who have gone missing. Not only that, the relatives have no idea what exactly happened to their loved one – he has already died, is it possible that he is in captivity, and if so, will he get out of captivity alive. Hope supports the lives of many of them, while the state does not help, but on the contrary – complicates the lives of relatives and friends. We hope that, in connection with this situation, official bodies will take steps to resolve existing conflicts and disputed issues.