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XVIII. The rights of servicepersons

[1]

1. Commonly encountered problems

In contrast to the previous year, in 2014 the military sphere underwent significant changes, both in theoretical terms and in practice. It is, above all, the creation of new public institutions for the protection of the interests of the state, defense, national security (such as the National Guard of Ukraine, military procuracy, interagency working group to study possible ways to protect the interests of the state in addressing the issue of succession on external debt and FSU assets, State Service of Ukraine for war veterans and members of the antiterrorist operation, Committee on sanctions against those who support and finance terrorism in Ukraine, etc.) and liquidation of the old ones (for example, the Council of experts on Ukrainian-Russian relations, Committee on militia reform, etc.), emending and adding addendums to the basic legal acts in the military sphere (e. g., the changes were introduced into the Law of Ukraine “On military duty and military service”, “On mobilization training and mobilization”, “On the status of war veterans, guarantees of their social protection”, “On social and legal protection of servicepersons and their families” and others) pertaining to military and adoption of new legislative acts (such as the Laws of Ukraine “On the National Guard of Ukraine”, “On lustration of power”, “On temporary measures for the period of anti-terrorist operation”, Decree of the President of Ukraine “On partial mobilization” etc.), which radically changes military service in our country. Today, more than ever, the whole range of problems in the military domain needs emending, discussing and making recommendations relative to the current state of the military sphere and ways of further legal regulation.

It is significant to note the decision to restore reorganized military procuracy concerning which the draft is underway of procuracies personnel who inspected the observance of law in the military sphere. If necessary, the Prosecutor General of Ukraine may create specialized procuracies exercising the rights of oblast, city, regional and inter-regional procuracies. The current legislation stipulates that under exceptional circumstances in certain administrative and territorial units the functions of the public prosecution bodies may be entrusted to military procuracies, the formation and liquidation as well as determination of status, competence and base staffing of which are carried out by the Prosecutor General of Ukraine. The Decree of the President of Ukraine of September 22, 2014 has now approved 12 posts in the Main Military Prosecutor’s Office, 13 positions in the regional military prosecutor’s office and 14 positions in the garrison military procuracy.

It should be noted that today the question of whether the return of Ukraine to the functioning of military procuracies is a positive step forward requiring careful analysis and study of the advantages and disadvantages of functioning of such institutions.

Simultaneously, the public activity in the sphere of financial, moral, material and other support of Ukrainian troops is on the way up. Thus, the official website of the Ministry of Defense of Ukraine informs that as of October 29, 2014 in the course of the action “Support Ukrainian Army” the accounts of the Ministry of Defense of Ukraine received as an aid to the Armed Forces of Ukraine from legal persons and individuals 150,707 MM. Of this amount, 139,093 MM are transfers for logistics, the rest for medical support of the Armed Forces of Ukraine. With calls to a single mobile number “565” in support of the Ukrainian army 36,659 MM were transferred (all for logistic support of the Armed Forces of Ukraine). In addition, the accounts of the Ministry of Defense received $154.700, €77,800, Kč5,300, C$450, SFr.140, and zł11,500. The total in UAH equivalent makes 3,137,100.

As amended in 2014, the military service in Ukraine is divided into regular military service; mobilization draft in times of crisis; contract-based service of privates; contract-based service of NCOs; military service (study) of cadets of higher military schools and higher educational establishments that comprise military institutes, faculties of military training, chairs of military training, departments of military training; contract-based service of officers and military service of drafted officers.

It should be noted that in 2013 the Law of Ukraine “On the Strength of the Armed Forces of Ukraine for 2013” was not adopted. Today there is no such law. The adoption of a similar law in 2014 is not at issue. However, the emergency in Ukraine urgently needs not only tackling immediate wants of the Armed Forces of Ukraine and other military formations, but also carrying out comprehensive much delayed reform of the defense sector. Legally there is a crying need for comprehensive reform of current inconsistent and outdated legislation in this area.

At the same time there are also positive legislative initiatives including the new Procedure of assignment of the combatant status to participants of the anti-terrorist operations approved by the Cabinet of Ministers of Ukraine on August 20, 2014 no. 413. In accordance with it the combatant status is assigned not only to the personnel of the Armed Forces of Ukraine and law enforcers, but also to employees of enterprises, establishments and organizations involved in the counterterrorist operation.

In previous reports on the rights of servicepersons we repeatedly drew attention to the need to improve combat skills, training and professional level of soldiers considering it as an important means of granting their constitutional rights. Since independence, the servicepersons of the Armed Forces of Ukraine had experience mainly of participation in international peacekeeping operations, which was not enough. The ATO combat operations have demonstrated that the lack of military exercises of proper quality and quantity in peacetime led to significant casualties during the combat operations. According to the National Security and Defense Council, as of November 11, 2014 in the area of ATO there were 1,052 KIA and 4,049 wounded. About 400 and more people were reported missing, 399 stayed in captivity. The right to enjoy the benefits was granted to 1,762 members of the families of fallen ATO participants.

This gave rise to pickets placed by mothers and wives of ATO soldiers demanding, rotation of servicepersons and cessation of hostilities in general. There were even instances of thoroughfare blockade intended to draw attention of the authorities. The question is that there occurred information leakage about violations of the rights of military personnel, including poor logistics, problems with weapons, fuel, military equipment and even the lack of proper food and warm clothing in the ATO combat area. The misbalanced logistics supplies enough materials only to a part of combat troops, and undersupply even basic things to another. This gross violation of the constitutional principle of equality leads to serious consequences. No doubt, this is a result of diversity of the sources of military supplies (state logistic support, volunteer organizations, businesses, etc.). However, the state has no right to leave any soldier without proper provisions and social protection (p. 5, art. 17 of the Constitution of Ukraine).

These difficulties called forth the decision of the National Security and Defense Council of Ukraine “On urgent measures to ensure national safety” of 4 November 2014, which was entered into force by the Decree of the President of Ukraine 880/2014. The said decision determined a set of measures, including revision of the norms of clothing allowance and provisioning of military personnel based on real needs identified during the ATO; increase of combat readiness of the units and formations of the Armed Forces of Ukraine and National Guard of Ukraine; search, delivery and identification of bodies of soldiers and law enforcers killed in action.

The foregoing suggests that the measures listed so far had not been taken at all or taken completely inappropriately. This allows to conclude that the Armed Forces and other military formations, as well as the state apparatus in general were not ready for such trial, which was reflected in the violations of rights of the servicepersons that took place during the ATO, including the right to life.

2. Social protection of servicepersons

The state social protection of servicepersons mainly affects the process of proper military service and performance of duties. If social guarantees established by law for the military are not provided, it is a violation of their constitutional rights and freedoms. If previous years were characterized by outdated laws and inadequate financing of the Armed Forces of Ukraine, in 2014, the government bodies adopted a long list of legal acts in the field of social protection, which, unfortunately, are flawed to a certain extent, and some of them are like a sort of profanation of social protection of servicepersons.

The Decree of the Cabinet of Ministers of Ukraine “On some issues of provision of housing for servicepersons and their families” from September 23, 2014 ordered to allocate major procuring entities 5,089,230 for the purchase of housing for the families of fallen soldiers who took part in anti-terrorist operations, law enforcement at the state border, repulsion of armed assaults against objects protected by servicepersons, liberation of captured objects or prevention of attempted forcible seizure of weapons, combat and other equipment and servicepersons who had spine injuries or lost their limbs during implementation of these measures, including: Vinnytsia Oblast State Administration 214,500; Volyn Oblast State Administration 493,400; Dnipropetrovsk Oblast State Administration 214,500; Zhytomyr Oblast State Administration 461,200; Zaporizhia Oblast Administration 461,200; Kyiv Regional State Administration 466,540; Kirovohrad Oblast State Administration 493,400; Luhansk Oblast Administration 493,400; Lviv Regional State Administration 954,530; Poltava Oblast State Administration 311,030; Sumy Oblast State Administration 525,530.

However, given the realities of today, the allocation of budget funds in the amount of 5,089,230 for the purchase of housing is not is not only too small and insufficient amount, but nothing could be purchased for these remains from the beginning. In no way such funding can be called implementation of social protection.

The same Decree obliges the Ministry of Defense and Administration of the State Border Service to allot 73,102,000 for completion in 2014 of capital development and reconstruction of the projects of housing and communal facilities with a high degree of readiness to provide housing for military personnel in the ratio as follows: Ministry of Defense 41,600000; State Border Service 31,502,000.

Earlier the Cabinet of Ministers of Ukraine approved the Resolution “On the procedure and conditions for payment of one-time financial assistance in case of dismissal of the servicepersons drafted according to the mobilization orders” of 17 September 2014, which stipulated that military personnel drafted according to the mobilization orders and dismissed from the service after the demobilization order (except for regular soldiers) had to be paid a lump sum allowance of 4% of monthly salary for each full calendar month of service, but not less than 25 % of monthly pay. The material assistance is paid to the servicepersons for the period of conscription on mobilization orders from the draft date without regard to the period of prior military service, where they were in the time of peace, except for those who in the case of demobilization in peacetime have not yet accrued right to get material assistance.

Carrying out the order, the amount of aid was calculated on the basis of the Resolution of the Cabinet of Ministers of Ukraine dated 17 July 1992 “On the procedure of calculating years of service, admission and payment of pensions and financial assistance to officers, warrant officers, midshipmen, career soldiers and contractual servicepersons, commanders and rank-and-file personnel of the bodies of internal affairs and their families.” However, all at once the Government of Ukraine set limits on the implementation of these provisions stipulating that assistance is not paid if the servicepersons were discharged from military service for incompetency, deprivation of rank, and in connection with a guilty verdict, which has come into force.

According to the official rate of pay to commissioned staff and according to personnel arrangements in territorial subunits, establishments, institutions and organizations of the State Service for Special Communications and Information Protection of Ukraine and commissioned staff of the State Service for Special Communications and Information Protection of Ukraine according to type personnel arrangements the following official rates of pay were established: chief of the territorial subunit, establishment, institution, organization — 1,990; chief of the department or communication center — 1,400–1,600; chief of the sector (department) or liaison office — 1,350–1,400; senior engineer, officer, information security specialist, other professionals — 1,000–1,100; engineer, officer, information security specialist, other professionals — 800–900.

The norm that military personnel who temporarily left military units preserving jobs by place of service, the benefit payment is not terminated in the event of going on leave with pay for the time spent on leave; treatment for the treatment time (for the period when they were paid allowance) and during release from duty due to illness; going on detachment, including, camp, courses, training, or as member of the unit for the period of a business trip may be considered a kind of social protection of servicepersons.

The fee is paid to the servicepersons during the special period (for the period when they are paid allowance) when they are evacuated due to injuries, hospitalized due to illness and therefore excluded from the lists of personnel of military units. In such cases, the pay is kept until the day of taking up the duties while assuming a new office to which s/he was appointed after the end of treatment (or until the day of being deleted from the list of personnel in connection with discharge from military service); captured or taken hostage and interned in a neutral state or are missing.

The Order of the Administration of State Guard of Ukraine approved procedure for payment of recompense for direct participation in anti-terrorist operations of military personnel of the Administration of State Guard of Ukraine dated September 19, 2014. This recompense is paid to servicepersons who was directly involved in anti-terrorist operations, ensured law and order on the state border, repelled attacks against guarded objectives, freeing these objectives in case of capture or attempted forcible seizure of weapons, combat and other equipment, as well as for the time spent in hospital for the treatment of injuries (concussion, traumas, mutilation) received during participation in these operations and activities since May 1, 2014.

The compensation makes 100% of monthly salary, but not less than 3,000 per month. The daily sum is determined by dividing the amount of monthly salary (but not less than 3,000) by the number of calendar days in the month. If during the period of participation in anti-terrorist operations or in-patient treatment the allowance of the serviceperson of the Administration, rank payments and additional remuneration undergo changes the allowance is determined on the basis of new sizes for each type of financial support from the date of introduction of changes.

Although during the last year the social welfare services to troops underwent serious changes, but such changes rather quantitative, and not qualitative. It should also be noted that a significant number of adopted normative legal acts in the field of social security of servicepersons fail to meet the standard of living today and they are not commensurate to the efforts (moral, spiritual, mental, psychological, physical) of servicepersons defending their homeland.

3. The problem of corruption in the Armed Forces of Ukraine

The legal and organizational principles of the functioning of the system intended to prevent corruption in Ukraine, the content and application of preventive anti-corruption mechanisms, rules for mitigation of corruption offenses are regulated by the Law of Ukraine “On Prevention of Corruption” of 14 October 2014. The lawmaker extends the application of the law to cover military officials of the Armed Forces of Ukraine and other legal military units, except for military conscripts.

Another positive development includes the extension of legislative regulation to cover special verification of information submitted personally by individuals who apply for filling responsible or particularly responsible position and posts with high corruption risk the list of which is approved by the National Agency. This special control has certain restrictions concerning citizens. It does not concern: drafted officer cadres, draftees mobilized for a special period, and draftees supposed to fill posts according to the war-time manning table.

According to the Ministry of Defense[2], The measures for prevention and detection of corruption are carried out taking into account the socio-political situation in Ukraine and objectives of the Armed Forces of Ukraine during the special period. To make efficient use of charitable funds and property, which are received by the military units, the arrival records and permitted use are timely controlled. The supervision is executed of the elimination of corruption schemes identified by the analysis of anti-corruption activities of the Ministry of Defense of Ukraine in the field of alienation and selling of military equipment, procurement of goods, works and services for public funds, disposal of rocket fuel and rockets and ammunition, supply of fuels and lubricants and boiler fuel to the Armed Forces of Ukraine, equipment supply and leasehold.

During the first six months of 2014, the results of audits of military representatives of the Ministry of Defense of Ukraine on the state of conservation of assets and management of public property were analyzed. The control measures revealed a number of corruption factors (existing schemes) in the areas of procurement and maintenance of weapons and military equipment, ammunition disposal and processing of products containing precious metals; the proposals to minimize them were designed.

In January 2014 the questions of possible corruption in bath-and-laundry service of the Armed Forces of Ukraine were looked into. The prevention of possible infliction of losses to the economic interests of the Ministry of Defense of Ukraine worth more than 2.3 million took place.

Pursuant to the Resolution of the Cabinet of Ministers from September 4, 2013 “On prevention and detection of corruption” the subunits (persons responsible) were created to carry out the prevention and detection of corruption in the Defense Ministry Ukraine and the General Headquarters of the Armed Forces of Ukraine, as well as enterprises under the Ministry of Defense. In January 2014, the personnel of such subunits was instructed at the meeting and provided with a set of training materials. The inspection was performed in the central office of the Ministry of Defense to control timely submission of declaration of property, income, expenses and financial obligations for the previous year.

In March 2014, an organizational meeting was held on drafting the order of the Ministry of Defense “On establishing a system for organizing and coordinating the work on preventing and combating corruption in the Ministry of Defense of Ukraine.” At a meeting of the Governmental Committee on Defense, Military-Industrial Complex and Law Enforcement on May 8, 2014 the committeemen reviewed the draft regulation of the Cabinet of Ministers of Ukraine “On the formation of a working group for preparation of proposals concerning the Concept of reform of the law enforcement agencies.”

In January and February 2014, the national course on training professionals in the field of preventing and combating corruption and courses on professional development and further training were taught at the National University of Defense of Ukraine with participation of the UK Ministry of Defense and representatives of international organization “Transparency International” in the format of the Action Plan “Partnership for Peace “Open Government”. An expert analysis of legislation in the field of the fight against corruption and draft legal acts of the Ministry of Defense Ukraine to identify rules that might contribute to or facilitate the commission of corruption offenses.

The set of measures for special control of persons claiming for filling positions related to the public function was developed.

Ten reports about administrative corruption offenses committed by the officials of the Ministry of Defense of Ukraine and the Armed Forces of Ukraine were taken to court during the reporting period. Eight officials were made accountable (punished by a fine) for managerial offences. During 2014, the information about 148 criminal corruption offences committed by the officials of the Ministry of Defense of Ukraine and the Armed Forces of Ukraine were entered into the Unified register of pre-trial investigations.

The bulk of criminal corruption offenses committed for mercenary motives fell under the article as follows:

— Article 410 of the Criminal Code of Ukraine “Stealing, appropriation, extortion or fraudulent obtaining of weapons, ammunitions, explosive or other warfare substances, vehicles, military or special enginery, or abuse of office, by a military serviceman” — 67;

— Article 366 of the Criminal Code of Ukraine “Forgery in office” — 32.

As a result of inspections conducted by the units for corruption control of the Law and Order Service 203 notices of infringement and notices of criminal offenses were taken to the pre-trial investigation agencies; out of this number eighty notices were entered into the Unified Register of pre-trial investigations and criminal proceedings were initiated.

During elimination of causes and conditions that had led to the commission of administrative corruption offenses by the military and civilian employees of the Armed Forces of Ukraine the units for corruption control of the Law and Order Service carried out a range of measures to prevent their manifestations, namely in the first six months of 2014:

— To eliminate the causes and conditions that contribute to the violation of laws, under paragraph 17 of Article 7 of the Law of Ukraine “On Military Law and Order Service of the Armed Forces of Ukraine” 189 recommendations were brought forward to commanders of military units (chiefs), officials of businesses and institutions;

— Took part in 32 checkups of command and control agencies, military units, (establishments and institutions) of the Armed Forces of Ukraine concerning the compliance with legislation on preventing and combating corruption and organized 581 prevention activities (lectures, discussions, briefings, consultations regarding the practice of anti-corruption legislation) in military units, organized seminars while visiting military garrisons.

The disciplinary charges were brought against 223 officers.

Solving the problem of corruption is a priority for the Ukrainian society at the present stage of development. Indeed, according to the research data, the corruption was among the reasons that led to mass protests in Ukraine in late 2013 — early 2014. According to the results of the study of Global Corruption Barometer conducted by the international organization Transparency International in 2013, 36% of Ukrainian were ready to take to the streets to protest against corruption. According to the public opinion polling conducted by the International Foundation for Electoral Systems (IFES) in late 2013, the corruption was at the top of the list of the biggest popular problems and caused particular concern in 47% of the population. According to the Corruption Perceptions Index published by Transparency International, the Ukrainians believe their country is one of the most corrupt in the world; in 2012 and 2013 the state was ranked 144 out of 176 countries included into the study.

4. RECOMMENDATIONS

1. Monitor the level of effectiveness of the military procuracies. Identify the strengths and weaknesses of their operation taking into account previous experience of this structure.

2. Identify the basic concepts related to the antiterrorist operation and introduce them into law. Bring normative legal acts relating to regulation of the antiterrorist operation in accordance with the Law of Ukraine “On Combating Terrorism”.

3. Change public attitude to the problems of social security of servicepersons strengthening their decision at the legislative level.

4. Strictly control the elimination of corruption, improve social significance of military service by comprehensive measures which should be permanent.

[1] This section has been prepared by Associate Professor of Public Law Chair of the Law Faculty of V. N. Karazin Kharkiv National University Yevhen Hryhorenko.

[2] Prevention of Corruption // http://www.mil.gov.ua/diyalnist/zapobigannya-proyavam-korupczii/