08.12.2000 | I. Sukhorukova, Kharkov

The level of legal defense of servicemen in Ukraine is very low


The Kharkov oblast Union of soldiers’ mothers reviewed and generalized our observations relative to such dangerous social phenomenon as deserting. The army and its problems should not be considered separately from the society and the social problems. This banal truth is not followed in real practice. Very often the military remain with their problems out of the focus of public attention and control.

For a year and a half (from May 1998 to September 1999) 18 youths, who escaped from their units, came to us. The experience of communication with these young men makes us conclude that the level of legal defense of servicemen is extremely low. The same was said by V. Artamonova, the chairwoman of the Union of Soldiers’ Mothers of Ukraine (USMU), at the all-Ukrainian USMU conference that was held in March 1999.

Out of 18 young men, who turned to our organization, 16 complained at dedovshchina and explained their decision to leave their unit exactly by this reason. The remaining two explained their escape by the grave diseases that became even more virulent during the service. What have we found analyzing their complaints? Out of 18 soldiers 11 (!) suffer from various diseases (sometimes psychic). Their cases appeared so obvious that later 9 of them were considered not able-bodied, which means that they had been called to the army contrary to law.

Among these nine there were two deserters N. and G, convicted for their escape as deserters. N. was convicted by Article 241 (desertion) to 4 years of incarceration. His parents turned to our organization with a complaint that the verdict had been made without accounting of mitigating circumstances, namely grave chronic diseases, with which N. had been called to the army. The medical documents, which N.’s advocate used at the court, testified that N. had suffered to cerebral brain traumas, that he suffered by partial loss of memory and that during staying in the prison he was observed by the psychiatrist. Besides he had a grave proctologic disease. With this bouquet of diseases N. was called to the army and then, disregarding the recommendations of the military hospital, to which he got in the first months of service, he was not directed for treatment, even after the second cerebral brain trauma. He was only directed on leave to his parents. Father did not permit the son to return to his unit, where his son was not treated and turned to the local military commissariat, asking to help. Any help was refused. The legal illiteracy of his parents and the state of his psyche made him run away. But what about military doctors? Are they not guilty, when at first they recruited the invalid, then did not treat him, then gave the incorrect estimation of his health? The last happened when N. was detained and directed by the military prosecutor to the military hospital of Kharkov garrison for investigation. The investigation was carried out very negligently. Having considered the complaint of the advocate and the documents of medical examinations of N. the Supreme Court of Ukraine entered the protest to N.’s verdict, regarding the circumstances making N. to desert as extraordinary (namely this term is used in the resolution of the Supreme Court). Then the verdict was changed, reducing the incarceration to that which he actually passed, that is he got two years instead of four. He was ill during the two years of incarceration, and, thanks to the prison personnel, he was under the permanent observation of doctors.

The case with another deserter, G., was not less revolting. The young man suffered from neural-psychiatric disorders, but nevertheless was taken to the army. There he immediately became the object of tortures and jokes from the side of his fellows. Investigating officers could study G.’s letters to his family, in which he described various aspects of dedovshchina. These letters were passed to the investigating officers by G.’s mother and sister, together with a medical certificate form the children psychiatric dispensary. Yet, G. was not directed to the medical expertise, his relatives were not summoned to the court as witnesses, G. had no advocate. the latter fact is explained by the following: the court is usually held at the place of service, sometimes very far from the place of residence of the serviceman. The relatives usually have difficulties in finding an advocate in the unknown town, even if they can afford an advocate. This happened in G.’s case, and, as a result, he was convicted to three years of the disciplinary battalion by Article 240 of the Penal Code of Ukraine. Our requests to the commander of the disciplinary battalion were duly answered and read that G. behaves very strangely and is kept separately from others. By decision of the commander G. was directed to the psychiatric department of the Kyiv military hospital. There he was considered unable for service. The court martial released G. from the punishment and his court record was cleaned.

This is a case with a relatively happy end. Less happy ends happen. Private A. escaped from his unit billeted near Simferopol. Two more privates had run away before him (one of them, like A., is a Kharkovite). Then two more ran away. A., having come to Kharkov, turned to the local military prosecutor’s office and, according to the law, he was examined by forensic medical experts, who found injuries resulting form beating and burns of glowing cigarettes on his skin. The prosecutor’s office recorded the fact that A. came on his own will, added the results of the expertise and directed him to the prosecutor’s office in the place of his service. Yet, Simferopol prosecutor’s office did not consider the results of the expertise as evidence of dedovshchina, although soldiers ran from this unit in crowds. A.’s parents told that in Simferopol the officials exerted pressure on their son and demanded that he should refuse from his initial testimony. As a result, A. ran away again and his present residence is unknown. If he is caught, then he will be responsible, but not those who encouraged dedovshchina and not Simferopol prosecutor’s office which did nothing to improve the situation.

All this happened with Kharkovites, who serve in different regions of Ukraine. If a serviceman runs from his unit, then his case, as a rule, is considered in the prosecutor’s office of the place of his service. Mostly this is far from home; the soldier and his parents do not know either advocates, or journalists, or human rights protection organizations. To prove that some time ago there were facts of dedovshchina in the unit is practically impossible, especially because the members of the regional prosecutor’s office support officers of the unit. That is why deserters prefer to dodge the officials. When servicemen on the run turn to our organization, we recommend them immediately to turn to Kharkov prosecutor’s office and their military commissariat. In very acute cases we turn to the Ministry of Defense and the General Prosecutor’s office. Such ’fresh deserters’, if they come to organs of military justice, are considered as not deserters; moreover, according to directive MO No. 115/337 of 28 January 1993, the commandment must transfer them to some other military unit. Unfortunately, we often observe that this directive is ignored. Having returned to the former unit (as it happened with A. in the Crimea) a young man does not feel himself safe and deserts again. Unpunished deds, irresponsible officers, negligent or incompetent of doctors of recruiting commissions cause that ill youths get to the army and are tormented there.

Recently in the interview to the Kharkov newspaper ’Vremia’ P. P. Panasenko, the deputy of the military prosecutor of Kharkov garrison, declared with a note of triumph that ’not a single deserter has dodged responsibility’. This declaration did not produce in us any satisfaction. We are sure that such deserters do not deserve incarceration. It would be much better for them and for the society if they are given the opportunity to get the alternative service. In our country we have about 226 thousand incarcerated, in this respect we are far ahead of all developed countries of Europe. We, tax payers, must think whether we can afford such cruelty.

Our authorities are very stern with those, who (because of weakness, legal illiteracy or desperation) run from the army and hides, without a hope to any justice. It would be more reasonable and efficient to be stern with supporters of dedovshchina. The Union of soldiers’ mothers sent a number of suggestions to the Supreme Rada and the Cabinet of Ministers. Here are some of the suggestions.

Creation at the local administration of legal aid to servicemen, organizing of ’hotlines’ by which a serviceman may phone or write a letter about his problems. To this end there must be at least one public telephone in a military unit for the free connection with the oblast center. Near this telephone there must be numbers of hotlines and of unions of soldiers’ mothers. To put obstacles to this communication must be considered a service offence and punished correspondingly.

The responsibility of officers, in whose units dedovshchina exists, must be made sterner. The existence of dedovshchina testifies of the professional unfitness of officers - they must look for other jobs.

Now a new practice is spreading in Russia: the recruiting side is materially responsible for recruiting of non-able-bodied. Concretely, military unit bring a suit against medical establishments who found the ill recruit suitable for army service. This is a good initiative, and it must be accepted in Ukraine.

There are auxiliary proposals of the Union of soldiers’ mothers of Ukraine, which were published in the documents of the USMU conferences and passed to the Cabinet of Ministers and to the President of Ukraine.

Returning to the question on the criminal responsibility for deserting, we turn to the organs of military justice with a request to be humane and to punish deserters with incarceration, if they committed some other criminal actions.

Recently the Kharkov newspaper ’Vremia’ published an interview with Zelinskiy, a deputy of the military prosecutor of the Kharkov garrison, in which he spoke on the corruption in the army. The officers, who were considered guilty of corruption and caught red-handed during taking bribes, were not incarcerated and punished in alternative way. We liked these humane steps on the side of the military justice. Here the military judges did not follow the public opinion that, as a rule, encourage the most cruel methods in the struggle with corruption. We are quite convinced that the guilty of non-violent crimes ought not to be punished by incarceration. We are also convinced that deserters should not be incarcerated, because in the most cases the one who must be blamed is the society, that was unable to support order in the army, to give a sufficient salary to officers, to prepare a reasonable legislation and to establish an efficient mechanism of servicemen’s rights protection. We beg the pardon of the military, but in our opinion it is better when boys primed by dedovshchina run form the army than commit suicides. Alas, only during last months we have learned about three such cases. Two of the boys, who killed themselves, were from the Kharkov oblast. In all these cases the investigation has not ended yet, and officially we may say nothing. But we saw letters from one of them. There were letters from a healthy normal boy. Such boys commit suicides only if they get under very hard circumstances.

We have turned to military and civil lawyers, as well as to our legislators, with the request to make Article 241 milder. Soon a new Penal Code of Ukraine must be adopted. We hope against hope that our suggestions would be accepted.

We are very glad that the action that was initiated by the General Prosecutor’s office has been prolonged. Now, as in 1998, the General Prosecutor’s office proposes deserters to come to recruiting commissions, and if they did not commit other criminal actions, they will be released from the criminal responsibility.

Servicemen or their parents, if they want to get free legal counseling, can turn to the Kharkiv branch of the USMU by telephone 143-171.

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