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25. THE RIGHTS OF THE SERVICEMEN

[1]

1. GENERAL PROVISIONS

In 2013 certain changes reflecting the new laws and regulations coming in force, the amendments to the existing normative acts and the provisions concerning the order of the Ukrainian military service have been introduced within the framework of the current developments in the Ukrainian Armed Forces and other military units.

Besides, the reform of the system ensuring law and order within the Armed Forces of Ukraine and other military formation is going on. It touches upon, first of all, the reforming of the military prosecutor’s bodies, which are to be totally eliminated in the future. Also by the end of 2012 a conceptually novel Criminal Procedural Code of Ukraine, covering the military issues, among other things, has come into force.

Nevertheless, the organization and functioning of the “law-enforcement bodies” and the adherence to the rights and freedoms of the servicemen remained pretty much the same over this year. The whole body of obsolete normative acts also remains unchanged; the funding of the national Armed Forces leaves much to be desired; the programs aimed at security and defense reform are not being implemented due to the obscure mode of thinking among numerous officials in charge of reforming process and everyday functioning of the army units. Ukrainian army lamentably is facing systemic problems which manifest themselves differently every year, but are not addressed conceptually by the state.

In order to resolve the systemic army problems, to define the strategy of its development, the state has to adopt respective target programs.
Specifically, on September 2, 2013 the Presidential Decree 479/2013 “On the decision of the Council for National Security and Defense of Ukraine of September 2, 2013 “On State Complex Program for reforming and developing of the Ukrainian Armed Forces for the period till 2017” approved the said state program.  It is attached to the Presidential Decree, but bears the seal of the “complete confidentiality”. Therefore the text is not available on the official Supreme Rada site.  

So far the Law of Ukraine “On the number of the the Ukrainian Armed Forces for the year 2013” has not been passed. The number of the Ukrainian Armed Forces is currently defined by the Law of Ukraine “On the number of the Ukrainian Armed Forces for the year 2012” of September 20, 2011. This law established the number of the Ukrainian Armed Forces as of December 31, 2012 within the limits of 184000 persons, including up to 139000 servicemen.  However, the ongoing process of the Armed Forces reduction is gaining momentum. “Under the new military reform in Ukraine a large reduction in the Ukrainian Armed Forces is in order. Thus, by the year 2017 the total number of the Ukrainian army will amount to 70000 persons. The downsizing will be carried out in several stages. By the year 2015 only 105000 out of 144 thousand servicemen will remain in the army, and eventually this number will diminish by another 25000”[2].

2. DIGNITY

The practicing of the supremacy of law in a legal state urgently calls for the review of the whole body of the military legislation in force, to ensure the necessary conditions for the safeguarding of the servicemen dignity, regardless of the domain of their service, deployment and office or any other factors (gender, education, background, religious affiliation etc.). And it is not just about the decent social standards, but about all the aspects of everyday life and interaction between the servicemen at the time of service and off it, as well as about the enhancement of the military profession prestige.   

As of today, the dignity of any person is recognized as the highest value at the constitutional level (Article 5 of the Fundamental Law of Ukraine). At the same time, neither Constitution, nor legislation in force is offering any viable guarantees or reliable implementation mechanisms. The Ukrainian Armed Forces’ Statutes in charge of all the aspects of the servicemen life and operation do not address the issue of dignity as an important guideline in the military/army relations.   This problem is most acute from the point of view of numerous violations of the sooldiers’ rights and freedoms, including the infringements on their dignity. This attitude has been in place for a long time and was officially supported as the unalienable component of the “burdens and privations of the military service”.    

In fact, the problem currently results from the commanders’ dodging their functional duties in various areas of the military service, and, first of all, delegating some categories of the servicemen the excessive authority with respect to other soldiers’ “upbringing”. The consequences often manifested themselves in the illegal physical and mental pressure, resulting in various traumas, injuries, both physical and mental, and subsequent negative attitude to the military service, demoralizing effect on the soldiers’ personality, affecting not only the term of service, but also the further life after the discharge from the army. Sometimes these “educational methods” were transferred by the former soldiers on their surrounding environment (family, public service, including law enforcement bodies etc.) Besides, such incidents distort a person’s perception of the human dignity.

No doubt, some military commanders who, in due course, have been subjected to such “schooling”, regarded this mode of behavior as natural and even positive. But officially the situation can be changed only at the legal level by way of rigid bans and additional guarantees.    The Criminal Code is not supposed, under the circumstances, to introduce new penalties for new types of crimes. The point is to offer a comprehensive approach within the framework of military legislation and service instructions in force, which would ensure the legal regulation of the military duty relations focused at the humane approach to the military service regardless of the type of service, official duties, rank, deployment and other factors, as well as at protecting the human dignity at all levels.  

This issue should be addressed without fail considering that under the Article 4 of the Armed Forces of Ukraine Statute, not only the duties, but also the everyday life of the servicemen is regulated by the said Statute. In other words, the regulatory impact of the legislation encompassing not only the duties, but also the everyday life of the servicemen, should be based to the maximum extent on the humane, civilized and well-grounded principles. 

The Article 11 of the part 7 of  the said Statute quotes the duty of each serviceman to safeguard the military fame of the Armed Forces of Ukraine and his own unit, honor and dignity of the Ukrainian military.   Evidently, the reference to the honor and dignity is plainly declarative, without any substantiation or protection mechanisms; it also addresses predominantly the military glory of the Armed Forces of Ukraine and not the dignity of the individual servicemen.

In practical operation the instances have been registered when the commanders (leaders) in their efforts to bring up the soldiers in the spirit of due respect towards the Armed Forces’ achievements or one’s own unit merits and to make them perform their military duties efficiently acted wrong, humiliating the servicemen unable of performing certain duties due to physical or mental limitations or the lack of the appropriate skills. In this case not only the dignity of a soldier humiliated in front of his comrades suffers, but his personality and psyche is negatively affected as well.

Besides, part 8 of the same Article of the Statute establishes that every serviceman shall respect military and warfare traditions, assist other servicemen in the dangerous situations, preventing them from committing illegal actions, respect honor and dignity of every person.  This norm obviously leaves much to be desired and is formulated with the only goal of prioritizing the aforementioned social values.

In this focus Article 49 of the said Statute seems more specific. It says that the servicemen shall always set an example of high level of culture, modesty and restraint, safeguard the military honor, one’s own and others’ dignity; they should always keep in mind that their behavior reflects upon the Armed Forces of Ukraine as a whole.  

We believe that the issues of personal dignity are most relevant both with respect to the whole country and the Armed Forces of Ukraine specifically, due to the long-lived practice of ignoring and neglecting human values. Currently the issue should be addressed at the new governmental and social level, starting with the upbringing of the children in the families, preschool establishments, schools and other educational institutions.

As far as the army is concerned, this issue should be in the focus of special attention due to the traditional characteristics of the army service – its closed environment, lack of outside control, rigid subordination system, lack of relevant mechanisms of counteracting illegal or even criminal orders, low level of social protection, persistent negative traditions which flourish within the close spaces of the barracks, broad discretion granted to the commanders, the obsolete, uncoordinated and archaic military law and regulations, lack of viable mechanisms of appeals available to the servicemen with respect to the defense of their rights and freedoms, as well as some other  peculiarities which cannot be ignored in implementing the policy of humanizing of the military/army relations. 

The issues of social protection are the most important beyond any doubt. The manning of the Armed Forces’ units with efficient personnel, high quality performance of the functional duties by the servicemen, their motivation will depend on them. Besides, the recess of the professionally trained military personnel will be curbed. On the other hand, however, these issues are of lesser importance for the formation of the personality of a serviceman than the issue of the personal dignity.

3. DEMILITARIZATION AND MORDERNIZATION OF THE MILITARY AND LAW-ENFORCEMEN AREA

The process of reorganizing the military prosecutors’ offices into the offices overseeing the enforcement of the laws in the military area came to an end in 2013. It started in August 2012. The investigators and prosecutors ceased to be the servicemen, acquiring the status of the classical “clerical staff” of the prosecutors’ offices. The process in place is the continuation of the liquidation of the court martial. It is called upon, on the one hand, to demilitarize the law-enforcement segment of the Armed Forces of Ukraine and other military units, and to set up the necessary conditions ensuring further independence of the said structures, on the other. The underlying concept of the reform in this sector is saving money used for the upkeep of these bodies, while expediency of their existence is still under debate, leading sometimes to controversy.

Meanwhile it is noteworthy that the investigators and the prosecutors within the military system should have a better understanding of the complicated and convoluted military law, of the peculiarities and specific characteristics of the military service, appropriate (or inappropriate)  military traditions. Besides, the experience of numerous countries, including the developed and the democratic ones, testifies to the fact that both military prosecutors’ offices and court martial can operate efficiently. All these arguments are to be taken into consideration beyond any doubt.

Acceptance by the servicemen of the controllers who are also within the military system is another argument in favor of the prosecutors’ offices. However, the level of acceptance does not define the quality of the monitoring. Besides, sometimes, the military prosecutors are not accepted and are even hindered in the performance of their professional duties. It happens when a prosecutor’s rank is much lower than the rank of the official under control.  In these cases the deprivation of the prosecutors of their military ranks could even contribute to the efficiency and objectivity of their operation, instead of affecting it negatively.

Besides, the demilitarization process in our country has become irreversible. By the end of 2013 the state promised to define the status of the prosecutors’ offices supervising the adherence to the military laws by passing the Law of Ukraine “On the prosecutor’s office”, which does not stipulate any specialized prosecutor’s offices at all. It means that by mid 2014 122 specialized prosecutor’s offices are to be liquidated (those in charge of military legislation, transportation, environmental). They will be replaced by the structure of the prosecutor’s office consisting of three tiers:     1) The General office, 2) regional and 3) local offices.

However, the modernization of the said bodies cannot ensure the due impact on ensuring and protecting the rights and freedoms of the servicemen just by the virtue of the prosecutor’s ranks and units of operation. The change will occur due to the way of their organization, focus at the appropriate performance of the job duties, quality of personnel training. All these goals can be achieved only with the due political will of the state.

 The new Criminal Procedural Code of Ukraine which had introduced changes into certain obsolete military laws deserves special attention as well. One of the positive developments is the introduction of changes into paragraph 17, article 67 of the Interior Service of the Armed Forces of Ukraine by the Law of Ukraine “On Changes to some legal acts of Ukraine with respect to the adoption of the new Criminal Procedural Code of Ukraine”.  These changes stipulate that a regiment commander can be deprived of authority to press criminal charges and launch an investigation against a felonious serviceman; instead, in case of criminal violation, he must make the fact known to the pre-trial inquest unit.

Part 4, Article 85 of the Disciplinary Statute of the Armed Forces of Ukraine, under which the commander can no longer “apply the measures stipulated by the Criminal Procedural Code of Ukraine Criminal Procedural Code of Ukraine”, but has to inform the pre-trial inquest unit in writing in case of the violation committed by a serviceman and bearing the evidence of criminal act, has also been changed respectively.   

Meanwhile, the structure of these regulations remained unchanged, i.e. the commander remains responsible for the legal education within his regiment and for the maintenance of the military discipline, and, therefore, it would be against his best interests to let the pre-trial inquest bodies know about the perpetrated violation. Doubtless, the criminal liability for the felony still remains the same. The only difference consists in the fact that under part 3, Article 45 of the Disciplinary Statute of the Armed Forces of Ukraine, (version of April 13, 2012) the commanders are held liable for failing to report an alleged criminal violation. Therefore, the practice of hiding certain felonies can still persist.  

The new Criminal Procedural Code of Ukraine as well as the Law of Ukraine “On Changes to some legal acts of Ukraine with respect to the adoption of the new Criminal Procedural Code of Ukraine” strips not only the commanders, but also the military law enforcement service of the Armed Forces of Ukraine of the authority to act as the inquest bodies. This latter body is also deprived of its former authority to investigate crimes and other infringements occurring in the Armed Forces of Ukraine.   

The new rules of investigation established by Article 216 should be named among the novelties introduced by the new Criminal Procedural Code of Ukraine. However, under p.1 of the Interim provisions of the Criminal Procedural Code of Ukraine, the competencies with respect to the pre-trial investigation of the criminal violations are fulfilled by the investigation bodies of the prosecutor’s offices according to the investigators’ authority defined by the Code, before the provisions of part one ( concerning the pretrial investigation of the crimes covered by articles 402-421, 423-435 of the Criminal Code of Ukraine) and part four, Article 216 of the Code come in force.   

After the provisions of part one (concerning the pretrial investigation of the crimes covered by articles 402-421, 423-435 of the Criminal Code of Ukraine) and part four, Article 216 of the Code are enacted the materials of the criminal inquest carried out by the investigation bodies of the prosecutor’s office are to be submitted by the said bodies to the respective bodies of the pretrial investigation authorized by this Code.   It means that in the future the pretrial   investigation will be conducted exclusively by the respective bodies under the Ministry of Interior and investigation bodies of the state investigation bureau.

The changes within the system of the preventive measures are noteworthy as well. Thus, under part 1, Article 176 of the Criminal Procedural Code of Ukraine 1) personal cognizance, 2) personal bail, 3) personal pledge, 4) home detention and 5) custody are considered to be preventive measures. Obviously, the preventive measure of commander’s supervision within a military unit is absent from the list. It was established in line with the Criminal Procedural Code no longer in force and envisaged the use of steps stipulated by the Statutes of the Armed Forces of Ukraine, aimed at due behavior and appearance of the suspect or the accused on the summons of the investigator, prosecutor or court.   The command of a military unit shall inform the respective body in writing.  

Evidently the said article fails in pointing out the main goals of the preventive measures (avoiding the obstruction of justice, putting an end to criminal activities). Therefore, one can arrive at the conclusion that the commanders’ supervision has not always been efficient as a preventive measure. There are examples of practices when superiors in command, having their own agenda in a case, would overlook the violation of the procedural norms for this measure, thus nullifying the purpose of its use. Specifically, a serviceman charged with committing a crime might be outside his military unit and, with the help of an attorney, try to meet the victims (civilians) and influence them in a lawless way. Such cases were numerous. 

Analysis of the norms of the Criminal Procedural Code leads one to the conclusion that the amendments introduced in the area of military matters are aimed, first and foremost, at the removal of legal regulation of the said issues. The Code disregards the specific characteristics addressed by its predecessor.  Summing up, it is noteworthy that the criminal procedure reform addressing military issues among others is an ongoing process, although some obsolete provisions within the military legislation would preclude the novelties from being implemented.  

Therefore, the review of the military legislation in force is in order, specifically of the Statute of the Interior Service and Disciplinarian Statute of the Armed Forces of Ukraine. It must ensure the due reporting of the criminal felonies committed by the servicemen and prevent the hiding of these illegal actions. It can be achieved by introducing legal norms which would not penalize a commander for the committed and uncovered criminal act within his unit, apart from the situations when the said felony was a direct derivative of his inertia.

4. UNIVERSAL CONSCRIPTION OR CONTRACT ARMY

The Armed Forces of Ukraine and other military formations play a significant role in the life of the state and society, in particular, with respect to the adherence to the individual and civil rights of citizens. First of all, a considerable number of the citizens do their military service within the frame of this state mechanism. Besides the operation of the said bodies can have a substantial impact on the rights and freedoms of lay persons having nothing to do with any law-enforcement bodies. This phenomenon manifests itself in various scenarios, and, specifically, in crisis situations. One of the crucial issues, though, is the fact that Ukrainian citizens are recruited to serve in these structures in total disregard of their desire (or lack of thereof) to do so.  

This state of things has politicized the issue of conscription tremendously.  That is why political elite pretty often has been using it to gain additional political bonuses.

According to the Ministry of Defense of Ukraine the last universal conscription to the Armed Forces of Ukraine shall take place in the fall of 2013, while in 2014 the last servicemen who have served on the mandatory basis will be discharged. By the year 2017 the reform of the National Army shall be completed, with the total transition to the contractual basis of army service. After all the stages of the state reforming program with respect to the Armed Forces of Ukraine and their development over the years 2013-2017 are implemented, the army will become completely contractual. [3]

Meanwhile, the Decree of the President of Ukraine of November 9, 2012, 635/2012 “On the terms of enlistment of the Ukrainian citizens for the mandatory army service and the discharge of the servicemen in 2013”, in compliance with p. 17, part 1, Article 106 of the Constitution of Ukraine and under the Law of Ukraine “On military duty and army service” the due conscription to the Ukrainian army was announced for April-May and October-November.

In its turn, the Cabinet of Ministers of Ukraine on September 4, 2013, passed and order 671- “On approval of number of Ukrainian citizens to be conscripted, the volume of conscription-related expenditures in October-November 2013”, establishing the number of 10800 person in total, including 5000 for the Armed Forces of Ukraine, 4800 for the interior units of the Ministry of Interior, and 1000 for the State Specialized Transportation Service. Nevertheless, the Armed Forces of Ukraine and public at large are not one hundred percent ready for this radical step, first of all, due to the very limited time-frame assigned for the transition. Besides, substantial allocations are needed for the competitive job market for the contracted servicemen. In the USA, for example the banning of the mandatory service took place over a course of several years, between 1920 and 1940, so that the whole reform implementation lasted for about 20 years.  

Some military experts sustain that the transition to the completely contractual army by the year 2015 is an entirely political decision. They do not see any obstacles in banning the mandatory conscription to the Armed Forces of Ukraine. It is the other law-enforcement agencies, specifically the military units of the Ministry of Interior that will face the problems due to this decision, as they are also formed by means of conscription.  In this context it is essential not to confuse the notions of professional and contractual army. Banning the conscription is not a big deal. But contractual relations will not ensure the functioning of the professional army per se. The state should make a significant effort to ensure the operation of a really efficient, mobile and    professional army. Considering the political aspects of the issue and its resonance among the Ukrainian public, it can be expected that the mandatory conscription, at least to the Armed Forces of Ukraine, will be banned prior to the presidential elections. Probably it will create the new problems for the Armed Forces.[4]

The Secretary of the National Security and Defense Council of Ukraine, while commenting upon the Decree of the President of Ukraine “On the State comprehensive program for the reforming and development of the Armed Forces of Ukraine till 2017”, stated that the army reform has been launched in Ukraine already. He specified that the Decree validated the decision of the National Security and Defense Council of Ukraine of September 2, 2013, by which the said program was approved. He also stressed that the main goal of the reform is the enhancement of the efficiency of the Armed Forces of Ukraine. Not only the numbers are to be harmonized and contractual basis of service introduced, but the whole system of command should be reorganized. In his words, the President of Ukraine by his decree has approved the new military-administrative division of the territory of our country, consistent with the provisions of the army reform Program. He clarified that Ukraine has been divided into three areas with the three respective sets of governing bodies. 

The Secretary underlined that the reform tasks encompass significant boost in the national army and servicemen profession prestige. It will be achieved, first of all, due to significant increases in servicemen remuneration and improvement in their living conditions. Due attention will be paid to technical modernization and equipment of the Armed Forces of Ukraine with the state-of-the-art arming.  

At the same time the Secretary stressed that the speed and efficiency of the reform will depend on the adequate funding. “Despite the world economic constraints which cannot but affect the Ukrainian economy, the President of Ukraine ordered the government to follow the chosen course of action without failure. We must improve the battle-worthiness of the Armed Forces of Ukraine dramatically” – stressed A.Klyuev. He also advised that the main budget lines for 2014, bearing on the operation of national security and defense structures, are being devised.   [5].

The Concept is aimed at creating battle-worthy, mobile, well-trained and equipped professional Armed Forces, capable of quick response to real and potential threats to the national security in the military area, of efficient curbing and terminating (localizing, neutralizing) armed conflicts at their early stages, preventing them from developing into the large-scale aggressions and capable of participating in the international endeavors in safeguarding peace and security.

The Armed Forces of Ukraine reform is to be implemented in two stages. The first stage shall cover main reforming steps, especially the optimizing of the Armed Forces’ size and predictable manning of the Armed Forces units and formations; taking away the Armed Forces’ inappropriate functions and releasing the excessive assets; organization of the military units; increase in the social guarantees for the servicemen and social protection for the persons discharged from the army.  The second stage envisages building up the capacity of the Armed Forces to provide timely response in case of the border conflict threat, enhancing the operative capacity to counteract armed aggression; total transfer to the contractual Armed Forces; bringing the indicators of technical equipment, financial remuneration and training of the servicemen into compliance with the respective indicators in the leading European countries.

It is noteworthy that total transfer to the contractual Armed Forces is planned for the second stage of the Armed Forces reform, i.e., under the Constitution, by the year 2015, which gives grounds for deliberations on excessively politicized nature of the issue.

The Concept under discussion has to set up appropriate incentives for army service, including increased wages, opportunities to refrain from military service at one’s will, and total transition to the contractual basis.  Appropriate conditions should be guaranteed for the professional soldiers and sergeants. The whole order of military life should be changed by introducing appropriate amendments to the Armed Forces’ Statutes, other regulatory documents and by ensuring appropriate social and everyday living conditions for the servicemen under the contract.  In order to enhance the quality of manning and to avoid misjudgment in recruiting the candidates an intensive preliminary training course (three months long) will be offered to the candidates. The decision with respect to the contract will be made on the basis of the training results. The preferential treatment of the servicemen willing to get their education while serving under the contract is being considered)[6].

Another issue within the focus of the Ministry of Defense high officials’ interest is the development of incentives for the best representatives of the Ukrainian youth to do their military service under contract. A number of tangible measures have been implemented already; their effect should become evident in the nearest future. First of all, the wages for the men serving in the Navy, Air Forces, paratroops of High Mobility and Specialized Units have been doubled.  Due to this measure the soldiers won’t be recruited mandatorily to the aforementioned military units. Meanwhile the increase of wages for other categories of the servicemen is not yet feasible. That is why the decision was made to achieve this increase by stages, 20% per quarter, between April 1, 2013 and July 1, 2014.  At the end of the day the wages should be doubled. The current salary fund constitutes 6654.2 million UAH, which allows the payment of the said amount in full. Therefore, as early as October this year a commander of the land troops brigade will get approximately 5700 UAH, a battalion commander– 5000 UAH, a company commander– 4500 UAH, and a platoon commander – over 3300 UAH.

The government plans other measures for the enhancement of incentives, alongside with the wages increase. The improvement of the social package for the contractual servicemen, covering free higher education, free choice of the service destination at the time of the first contract, due conditions for the service and leisure ( fixed duty hours, 5-days working week, free travel around Ukraine on holidays and weekends), housing provisions etc., is under consideration.  

5. RECOMMENDATIONS

1) Devising a comprehensive approach based on the military legislation in force and service instructions, ensuring legal regulation of the military service relations, with due consideration to the humanitarian aspects of service regardless of its type, rank and duty of a serviceman, deployment and other factors, and to the personal dignity at the highest level.

2) Reviewing the applicable military legislation, and, specifically, the Statute of the interior Service and Disciplinary Statute of the Armed Forces of Ukraine with the goal of empowering the commanders to report the cases of criminal violations committed by the servicemen and preventing the cases of hiding up the said illegal occurrences. Due legal norms protecting a commander against penalties for the criminal violations uncovered in his units are in order (apart from the cases when the said violation resulted directly from his inaction).

3) Applying efficient measures for stage-by-stage transition to the contractual basis of the military service. The whole process shall be depoliticized to the maximum extent, providing instead realistic, economic, scientific and information background for the feasible transition  to the contractual army with due battle-worthiness of each unit, Armed Forces and all military formations.

 

[1] The chapter was prepared by the assistant professor of the state and law chair, law department of V.Karazin Kharkiv National University Ye.Hryhorenko.

[2] Who will stay in the army after a big cut-down? // http://wartime.org.ua/1609-hto-zalishitsya-sluzhiti-pslya-velikogo-skorochennya.html

[3] The agency clarified that the terms of the transition to the professional army have been moved again. http://tsn.ua/ukrayina/u-minoboroni-zaspokoyili-ciyeyi-oseni-prizov-do-armiyi-bude-ostannim-296552.html

[4] Army conscription can be banned prior to the Presidential elections  // http://razumkov.org.ua/ukr/article.php?news_id=1059

[5] A. Klyuev: the implementation of the Armed Forces of Ukraine Reform Program has started. http://www.rnbo.gov.ua/news/1504.html

[6] http://www.mil.gov.ua//files/reform/Buklet.pdf