27. RIGHTS OF SERVICEMEN
1. Some common problems
There has been a long-standing need to reform the Ukrainian Constitution, including the regulations of military service and status of servicepersons. In our opinion, the wording of part 2 of Article 65 of the Constitution of Ukraine[1], which reads: "Citizens shall perform military service in accordance with law", which is incorrect. This is due to the fact that the term "perform" reflects the military service as a heavy duty, burden, and punishment and should not apply to military service. In this regard, the Basic Law, unfortunately, starts an idea of military service not as a special kind of public service, but as an anomaly of social life.
In this regard, in terms of legal technique, the sentence "Citizens shall perform military service in accordance with law" in part 2 of Article 65 of the Constitution of Ukraine should be rephrased in the reformed Constitution of Ukraine: "Citizens of Ukraine shall serve in the army or do alternative (non-military) service in accordance with the law" because the term "serve" in this context and according to contemporary understanding is consistent with civilized forms of military service, and to specify that only the citizens of Ukraine are concerned. (In Russia, for example, there is a different situation: its Constitution[2] clearly states that the citizens of the Russian Federation shall perform military service, but current legislation allows doing service foreigners as well. The incorrectness of this situation is discussed in special publications[3]).
Thus, the term "serve" is most clearly consistent with the process of military service in a modern democratic state, and therefore it should be used both in the Constitution of Ukraine, and in the current legislation.
Regarding the need to fix not only military, but also an alternative (non-military) service in part 2 of Article 65 of the Constitution of Ukraine, it is necessary to point out that the latter should be seen not only as a right, but as a duty as well. This is due to the fact that the alternative (non-military) service is performed by a citizen of Ukraine who has appropriate reasons to serve in the army, if needed. It means that the citizen, who must perform military service and whose religious beliefs contradict this, has the right to replace the said obligation with alternative (non-military) service; that is such a citizen can choose the variant of behavior. But after such a choice and realization of the right of doing non-military service, the citizen of Ukraine fulfills her/his duty that is directly related to the existence of military duty and which replaces the latter.
In Part 1 of Article 1 of the Law of Ukraine "On alternative (non-military) service"[4] there is a clear statement that such a service is introduced instead of statutory military service and aims at fulfilling the duty to society. P.M. Rabinovych rightly notes that in the case of alternative (non-military) service the citizen is not exempted from military service, but only “requalification” or replacement takes place[5]. Moreover, in support of this thesis, we should quote part 3 of Article 43 of the Constitution of Ukraine[6], which states that the alternative (non-military) service shall not be considered the forced labor. That is the alternative (non-military) service for its legal nature can be considered a right-duty.
In addition, it is noteworthy that the Disciplinary Statute of the Armed Forces of Ukraine in Article 4 contains a provision stating that military discipline requires that each soldier observes the Constitution and laws of Ukraine, Military oath, strictly complies with military regulations, orders of commanders; be vigilant, secure state and military secrets, follows certain rules of conduct of military personnel specified by military statutes, strengthens military fraternity; shows respect to officers and to each other, keeps a civil tongue and respects the military etiquette; behaves with dignity and honor, does not allow herself/himself impropriety and keeps others away from unworthy acts.
It should be emphasized that the Basic Law of our country in Article 3 affirms that an individual, his life and health, honor and dignity, inviolability and security shall be recognized in Ukraine as the highest social value. Based on the fact that the disciplinary statute is one of the most important acts that directly regulates military discipline, the duties of servicepersons concerning the discipline, types of incentives and disciplinary measures, right of officers as to their application, as well as the procedure for submission and consideration of applications, proposals and complaints, it would be appropriate to amend Article 4 of the Disciplinary Regulations of the Armed Forces of Ukraine with provisions that the military discipline also requires each of the military to respect the rights and freedoms, honor and dignity of other soldiers, and respect the individuality of each.
It is also very important that the military discipline means perfect and strict adherence by all servicepersons to military order and all rules established by military statutes and other laws of Ukraine; therefore fixing the foregoing provision will clarify the issues covered by military discipline and reduce certain percentage of harassment among servicemen.
In conclusion it should be noted that it is worth riveting attention to questions arising from the liquidation of military courts and military procurator's offices. The use of relevant terms (military prosecutor, the military prosecutor's office) in the legislation remains an open question. The Law of Ukraine "On amendments to some legislative acts of Ukraine on the improvement of public prosecution," which was adopted on September 18, 2012, becomes effective as of December 1, 2012[7], changed in the Statute of Internal Service of the Armed Forces of Ukraine, Statute of garrison and guard services of the Armed Forces of Ukraine, Disciplinary Statute of the Armed Forces of Ukraine, Law of Ukraine "On the Military law enforcing service of the Armed Forces of Ukraine" the words "military prosecutor" to "appropriate prosecutor." The latter term involves certain confusion about what is meant by "appropriate".
2. Supply of weaponry and military equipment to the Armed Forces of Ukraine as a factor of national security and condition for observance of human and civil rights
Under modern conditions of human civilization the complex, complicated and multifaceted security problem is the most urgent problem of international community and every individual country. Therefore the developed countries are paying considerable attention to the above problem by taking appropriate measures and addressing necessary domestic issues in order to create prerequisites ensuring national security. Moreover, in order to ensure global and their own safety, the individual sovereign states coordinate and combine their efforts with other states working in this direction.
The problem of national security of Ukraine also was and is quite relevant and significant. Therefore the Ukrainian state makes steps to ensure it. Currently there is an appropriate legal framework, which is a system of normative legal instruments regulating a wide range of issues directly related to national security of Ukraine, which is maintained under the Constitution of Ukraine as the Basic Law of the state and society. It is within the specified framework of normative legal instruments the Ukrainian state organizes, builds and realizes its own politics intended to ensure national security.
Regardless of this, there are plenty of problems in the area of national security of Ukraine. They include many objective and subjective factors, as well as the fact that this is a complex issue embracing all aspects of public and social life. That is it should be tackled with a combined effort of all agencies of the state mechanism, as well as the active position of each individual. Moreover, by definition this specific problem cannot be solved for good and all, but requires persistent, targeted and hard work aimed at ensuring continuous guaranteeing and tackling security issues, forecasting probable and possible new hazards and their prevention and also overcoming or minimizing impact of existing negative factors.
Today, there are real and potential threats to the national security of Ukraine, which show up in attempts to set up and operate illegal paramilitary groups and attempts to use military units for the benefit of certain forces, foreign military build-up near the borders of Ukraine distorting the balance of power, dangerous lowering the supply of military equipment and weapons of the new generation for the Armed Forces of Ukraine, other military formations, which threaten to decrease their combat capabilities, pile-up of obsolete weaponry useless for the Armed Forces of Ukraine, as well as military equipment, arms, poor levels of social protection of servicepersons, citizens placed on the retired list and their families.
The government policy on national security aims at speeding up the reform of the Armed Forces of Ukraine and other military formations to ensure their maximum efficiency and ability to give an adequate response to the real and potential threats to Ukraine, to strengthen the monitoring of the armament and security of defense facilities and the social protection of servicepersons and their families[8]; however, the real state of the national security of Ukraine remains quite vulnerable.
A number of factors points to a vulnerability of the situation. The assessment that the state of arms of the Armed Forces of Ukraine is close to a critical point was published by the Centre for Research of Army, Conversion and Disarmament in the newspaper of unofficial information “Narodnyi ohliadach” back in 2008[9]. At the time 93% of weapons and equipment in the Land Forces already exhausted their resources. In the Air Force, of 172 aircraft in service of Joint Rapid Reaction Force, the unit of the Air Force of Ukraine with best fighting efficiency, 62, i.e. 37%, were unfit for combat. In Navy no one of 10 surface ships, attached to the Joint Rapid Reaction Force, is fully serviceable technically. The Ministry of Defense of Ukraine reported that by the end of 2007 70-80% of the principal nomenclature of rocketry and artillery, about 50% of fighters and surveillance aircraft, 60% of bombers, and 20% of fighter-bombers had become unusable.
At the time they noted that by the end of 2011 the Ukrainian Armed Forces would come close to the limit of their existence as a functional structure. Therefore, the question of immediate rearmament of the Armed Forces of Ukraine was put point-blank."
The expert believes that a possible way out of the situation is urgent, realistic analysis of needs of Ukrainian army in rearmament independently from departmental interests. Then should follow the new prioritization of the development of military-industrial complex and proper coordination of the weapons development programs for the Armed Forces of Ukraine. The next step would be the implementation of priority programs of rearmament of the Armed Forces of Ukraine with the active involvement of advanced technology from abroad through joint ventures and attraction of leading world companies in order to design military equipment for the Armed Forces of Ukraine. In this regard the contacts with European clients were considered the most promising.
Meanwhile, according to the Centre for Research of Army, Conversion and Disarmament, the Ministry of Defense was going to spend $2.4bn on the rearmament of the Ukrainian Army in 2009-2011. In 2009, the cost of rearmament, purchasing new weapons and equipment had to make $600M. In 2010, these costs had to reach about $800 M and about $1bn in 2011. “This situation creates favorable conditions for the development of broad cooperation of domestic military-industrial complex with the NATO countries. Such cooperation can provide a new technology and investment Ukrainian enterprises of the defense-industrial complex. The Europeans have already stepped into the defense-industrial sector of Ukraine. The most striking example is the project to create a corvette for Ukrainian Navy, where about 40% of components will be supplied by European companies”, said the expert[10].
The Head of the Research Center of the Army reported: “In 2006-2010 only the land forces received more than 400 units of military equipment. The list of nomenclature is rather impressive: from comprehensive simulator for the crew of T-64B tank to night vision goggles to ONB-300 and fire-extinguishing tanker ATs-40. But despite the long list, the key idea is the same: over the past two decades, not only the land forces, but all Ukrainian army received no samples of military equipment that would strategically affect the defense capacity of the country. Perhaps that is why the Ukrainian army keeps buying only ready-made machines: by 2015 they plan to buy more than 300 and upgrade more than 240 armored fighting vehicles for the Army. Such voluminous buys of armored fighting vehicles can hardly be considered a norm, despite the fact that, according to military experts, only a fifth of combat aircraft and one fourth of combat helicopters in service in the Armed Forces of Ukraine may take off (!). And only less than one half of surface-to-air missile systems is in good order.”[11]
Is it possible in this situation to say that the country has an adequate air defense against potential aggression? Moreover, experts say that by 2016 the Armed Forces of Ukraine will have no suitable aircraft missiles or missile systems for air defense. According to military experts, the resource of maintainability and level of possible upgrading of combat aircraft will be exhausted by 2020. While Ukraine adds to its armory fire-extinguishing tankers (which may be unrelated to defense capacity) and tires, other countries are buying aircraft, missiles and modern air defense complexes[12].
The White Book published in February 2011, states: over the past five years in the Armed Forces of Ukraine a series of planned activities remained unfinished: in particular, the optimization of the management of the Armed Forces and the creation of a single automated control system. Only eight (14.4%) of planned 55 combat aircraft were modernized, 21 surface-to-air missile systems were not upgraded and a new one S-300 was not purchased, the same with two AN-70 aircraft and 14 radars "Pelican". The level of serviceability of aircraft (24%), helicopters (36%), ships and support vessels (7%) is rather low,
The modernization of combat helicopters remains a dream for the time being. And there is no info on assignment of means for these needs. For example, neighboring Poland has decided to modernize 16 MiG-29 of the 32 existing aircraft. So, even for perfunctory modernization Warsaw will lay out $3 million per an aircraft. As for the fighter aircraft of the Armed Forces of our country, the serious improvement of tactical and technical characteristics may require at least $4-5 million per each MiG-29. The 2012 budget inspired a sort of optimism. And in terms of rearmament, the total amount for these needs should exceed UAH2.8bn, or $350 million. However, compared to other states, Ukraine is an outsider. Let us recall neighboring Poland again: over the last decade it increased the cost of rearmament from $700 million up to $1.76bn in 2010. By the way, it's almost the total sum of Ukrainian defense budget for basic, guaranteed fund. For military procurement Sweden plans to spend $1.36bn in 2012. It is noteworthy that the state, which, unlike Ukraine, is not at the intersection of geopolitical interests of major global players, spends almost four times more on weaponry. Meanwhile Ukraine, having increased its defense spending, cannot compete even with small Czech Republic, which spends on the purchases of new defense systems $450-500 million a year. And in2012, our country has a only slight chance to get ahead of Belarus, which spends up to $150 million annually[13].
At the sa,e time, it should be noted that in 2011 the Chief Inspector of the Ministry of Defense of Ukraine in his interview for the magazine "Viysko Ukrayiny” noted that 90 percent of the armored vehicles of the Armed Forces of Ukraine are morally and physically obsolescent. He emphasized the fact that in 19 years of independence only 93 new and upgraded models of combat military equipment produced by domestic enterprises of the defense-industrial complex were put in service. This quantitative indicator of total new combat military equipment does not exceed 10 percent; the other 90 percent is obsolescent[14].
It is believed that "in two decades of Ukrainian independence the army greatly lost its former prestige in society and remains an unpopular institution of the state (however among other state institutions the army traditionally enjoys more confidence). Twenty years of budgetary financing of the army according to the leftover principle led to its apparent degradation, outflow of professional servicepersons, who do not believe in the prospects of the defense sector, and low attractiveness of the contract service. The experts estimate not only technical condition, but combat skills, but also morale in the army much lower than required for adequate response to modern challenges and threats”[15].
But despite the above (as if positive) intentions, favorable conditions and forecasts, in May 2012, the Defense Minister of Ukraine during a board meeting of the defense department acknowledged the critical state of armaments and military equipment in the Ukrainian army. “The state of armament and military equipment directly affects the level of combat readiness of the Armed Forces of Ukraine. Therefore the issue of the restoration of technical condition of weapons and military equipment is very serious,” he said. According to him, the current state of weapons and military equipment of the Armed Forces of Ukraine is rated as critical and characterized by rapidly shrinking their technical availability. More than half of the samples of armed military vehicles need modernization and renewal[16].
However, quite the opposite opinion about this situation was expressed by the Director of Finance Department of the Ministry of Defense, which said that the 2012 budget appropriations for the restoration and repair of military armed vehicles increased by 2.4 times and total UAH708 million. Moreover, he said, through the effective use of budgetary funds they managed to allocate additional UAH111.2 million, which in 2012 will permit to carry out a significant amount of work to restore the weapons and military equipment. In particular, they plan to restore and repair 53 aircraft, 30 helicopters, 14 surface-to-air missile systems, 14 combat ships, 274 units of weapons and military equipment of combined arm nomenclature etc[17].
After that, according to the Ministry of Defense of Ukraine, "for the first five months of 2012, after the restoration and repair, the troops added to their armory 11 combat aircraft, 6 helicopters, 8 surface-to-air missile systems. Another 6 aircraft are undergoing modernization at public enterprises of the defense-industrial complex”[18].
But this kind of report was duly refuted. “The Defense Ministry annually declares that they annually put into service 5-7 samples of weapons and vehicles. In 2011, according to official figures, they supposedly effected breakthrough and put into service 10 new models at once. But Ukraine is a specific country and the adoption does not mean that these models will go into service in the Army in the next decade. At the same time, what really comes to subdivisions (albeit in small lots and even as single samples) includes a variety of fitness equipment, secondary equipment, devices, or, as in the Navy, rescue equipment. That is something that does not affect dramatically the combat efficiency of the army. They may come in handy, but they are not strategically important types of weapons. Simply put, these "new models" adorn the statistics, but not the army[19].
It is worthy of notice that the term of the State program of development of weapons and military equipment of the Armed Forces of Ukraine for the period 2006-2011 ran off in 2011, and by this time they have failed to adopt the act regulating the development of such weapons. But Ukrainian state authorities seem quite satisfied with this situation, because in September 2012 the Government of Ukraine signed the Protocol between the Cabinet of Ministers of Ukraine and the Government of the Republic of Poland on amending the Agreement between the Government of Ukraine and the Government of the Republic of Poland on mutual deliveries of weapons and military equipment and services for military-technical branch[20].
Moreover, the procedure of settling accounts by the Ministry of Defense of Ukraine with the executors of the restoration and repair of weapons and military equipment of the Armed Forces of October 14, 2009 was canceled in August 2012 on unknown reasons. The weapons and military equipment of Ukrainian army do need updating and repair, or don’t they? Until now, there is no valid act regulating relations in this area.
The above analysis of weapons and military equipment in service in the Armed Forces of Ukraine concerns only one direction, the implementation of which is reflected in the condition of National Security and Defense of Ukraine, direction, implementing of which the national policy on national security had set itself, i.e. strengthening control of arms and security of military installations. And, unfortunately, even without going into details, we can have an idea and make our own conclusions about the state of the army in Ukraine, the state of the national security of Ukraine, ability to protect its borders and create real conditions for ensuring the rights and freedoms of people and citizens.
3. ON DEFERMENT OF MILITARY SERVICE
In our state there exists an adequate system of training boys to participate in national defense in case of aggression. But not all people can undergo such training in time, because life is multifaceted and not predictable. The legislator took it into account and provided for recruits the opportunity of deferment of military service for family reasons, for health reasons, for education and for continuing professional activities. It certainly is one of those numerous steps that Ukraine must make to be democratic, social, and legal state.
However, it should be noted that the legislation created obstacles for the proper exercise of the right of citizens to deferment of military service. In particular, problems arise in practice in relation to the provision of such deferments for Ukrainian citizens who take classes in foreign universities. The issue is that part 8 of Article 17 of the Law of Ukraine "On Military Duty and Military Service" specifies that deferment of military service for education for the entire period of study is given to citizens of draft age who are enrolled in higher education institutions on full-time basis, including obtaining the next higher educational qualification of higher education.
Apparently, this provision does not specify which institutions of higher education are meant: Ukrainian or foreign. However, the presence of directions contained in part 9 of this article (right to defer military service for reasons of education may mean that this also concerns citizens of Ukraine enrolled in schools abroad within the framework of international agreements of Ukraine) indicates that part 8 refers only to Ukrainian universities. Therefore, the person, who gets education abroad at her/his own expense and not under international agreements of Ukraine, formally and legally is not entitled to deferment.
At the same time, it should be noted that the above Law contains a provision that allows in cases not covered by Law the deferment of military service for citizens. Specifically, part 15 of Article 17 of the Law specifies that in cases not covered by this Law the deferment of military service may be provided in accordance with the decisions of the draft board of the Autonomous Republic of Crimea, oblast and Kyiv City draft boards on the proposal of the district (city ) draft boards.
Therefore, to resolve the issue of granting deferment to citizens of Ukraine going to educational institutions abroad the part 8 of Article 17 of the Law of Ukraine "On Military Duty and Military Service" should be amended as follows: "the deferment of military service for education for the entire period of study is granted to citizens of draft age who are studying in higher educational institutions of Ukraine and abroad on full-time basis, including the period of postgraduate studies.”
4. VIOLATION OF SERVICEMEN’S RIGHT TO VOTE AND TO BE ELECTED
In the Ukrainian legal practice there is a bad tradition to adopt electoral laws before the elections. That also goes for the Law of Ukraine no. 4061-VI «On Elections of People's Deputies of Ukraine" dated November 17, 2011 published in the Holos Ukrayiny Daily on December 10, 2011. That is this law was passed in less than a year before the regular parliamentary elections (October 28, 2012). It contains no revolutionary changes of servicemen’s right to vote freely. Part 3 of Article 6 of the law almost completely reproduces Article 217 of the Statute of Internal Service of the Armed Forces of Ukraine. However, adopting the election law the authors enmeshed in military terminology and wrote: “To ensure the conditions for free expression of servicemen’s will on the Election Day, they are granted a leave to vote not less than four hours.” But no leave can be granted in this case but a leave pass as specified in Article 217 of the Statute (for free expression of servicemen’s will on election day the leave pass is granted for at least four hours). That is the legislator instead of the term "lease pass" in the electoral law used the term "lease" that does not comply with the provisions of Article 216 of the Statute of Internal Service of the Armed Forces of Ukraine containing differentiation of such terms as leave, leave pass, and secondment.
Therefore the election laws should be amended by removing the term "leave" when it comes to enabling the military to exercise their civil right to vote, and replace it with the term "leave pass" and avoid such a substitution of concepts in future. Because leave, leave pass, and secondment have different backgrounds, timing, purpose and reason of granting.
In this regard it should be noted that when presidential elections of Ukraine were held the servicemen were granted leave passes so they could vote. According to the Ivano-Frankivsk Reporter Weekly “the leave-pass schedule in military units is prepared in advance to grant all servicepersons the possibility to express their will in electing the head of state". "It should be emphasized that for several elections now all soldiers and officers have been voting at general polling stations. There are no closed polling stations in military units. This is considered a manifestation of the democratic development of our society and the army in particular.” The commanders of some military units stressed that “sometimes we hear about the alleged pressure on soldiers and officers as to whom they should vote for. But it is not so. Everyone, without exception, conscripts, regardless of their achievements, violations of military discipline or other factors that generally affect granting a lease to the city were issued the lease passes for four hours. And nobody controls how and where they will go. After all, to take or not to take part in the elections is the matter of conscience of every citizen. S/he can participate in elections, if s/he wants to. We do not require any evidence whether the soldier visited the polling station or not”[21].
As to the provisions of the Statute of Internal Service of the Armed Forces of Ukraine granting equal opportunities for free expression of conscripts’ will on Election Day, it also contains certain exceptions. In particular, Article 217 of the Statute specifies that to ensure the free expression of conscripts’ will on the Election Day they are issued lease pass for no less than four hours, except for the duty detail. But further it reads that the voting of duty detail soldiers can be done in out-of-duty hours only. In practice such instructions lj not grant the right to vote for the said persons. Therefore, there is a need in clearer (imperative) regulation of this matter.
However, there is a disturbing and nihilistic situation fixed in part 6 of Article 3 of the Law of Ukraine "On the Election of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local radas and village, town and city mayors”, which specifies that the conscripts, citizens of Ukraine living abroad, as well as those found incompetent by a court, and the citizens of Ukraine sentenced to imprisonment are considered as not belonging to any local community and have no right to vote in local elections. Part 7 of Article 18 of the same Law regulates that the voting stations are not formed in military units (formations). The servicemen eligible to vote in the appropriate local election in accordance with Article 3 of this Law vote at regular voting stations located outside of military units (formations).
There is no doubt that these provisions violate the Constitution of Ukraine, namely Articles 69, 70, 71, 21, 22, and 24.
The members of the Venice Commission of Ukraine, representatives of various political forces, Deputy Chairman of the Central Election Commission, Chairman of the Committee of Voters of Ukraine and others were called to fix their attention on the fact that the Law of Ukraine "On the Election of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local radas and village, town and city mayors" has a number of provisions that have signs of unconstitutionality.
So, it should be noted that under the present electoral law, which the top authority subjugates for their needs, remains very incomplete, including the unguaranteed rights of servicemen.
5. PROBLEM OF CORRUPTION IN THE ARMED FORCES OF UKRAINE
In addition to the above-mentioned problems of armaments and military equipment, inconsistence in the law on the right of citizens to deferment, and breach of electoral rights of the servicemen there is such terrible and pernicious phenomenon as corruption.
Today, corruption is one of the biggest threats to any country that aspires to be democratic, legal and social. We can but agree with V. V. Cherepanov, who rightly noted that "the emergence of corruption as a negative phenomenon is peculiar to a society that is under the influence of power and money”[22]. Such a phenomenon as "corruption" violates rights, freedoms and legitimate interests of citizens, undermines social justice, rule of law, adversely affects the economic development of the country and eventually "kills" its moral, cultural, legal principles. Unfortunately, today the corruption permeates all spheres of public life of a number of states. And Ukraine is no exception.
In recent years, the Ukraine’s rating of decency dropped from 99th place in 2006 down to 146 (of 187) in 2009. According to the latest report of the international human rights organization Transparency International on corruption in the world “Barometer of global corruption––2009” Ukraine occupies the last place among the "newly independent states". In 2010, Ukraine showed a slight tendency to improve the level of corruption in the country. This is evidenced by the corruption perception index, which is monitored by the organization Transparency International: figure 2.4 versus 2.2 in 2009 (out of 10 possible points) is very far from the desired result. The Transparency International considers any result below three points "a disgrace to the nation forced to live in a totally corrupt state." Besides, now there is no guarantee that fighting corruption will not be used by the ruling team as a tool to settle accounts with political opponents or the reason for narrowing democratic rights and freedoms[23]. In 2011, Ukraine ranked 152 in the corruption perception index compiled by international human rights organization[24]. However, the Prime Minister of Ukraine refutes the above information and disputes the reliability of the data on which the experts of the above organization base their conclusions[25].
This part of the report will dwell on some causes of corruption, its presence in the Armed Forces of Ukraine (military formations, on which according to the Constitution of Ukraine relies defense of Ukraine, protection of its sovereignty, territorial integrity and inviolability), legislative means intended to prevent such phenomena and ways of improving the legal regulation of this issue.
There are plenty of reasons that give rise to corruption in the specified segment of the state apparatus. Given the level of legal culture in society, we consider it necessary in the first place to include here dishonesty, lack of moral principles in certain servicepersons, including commanding officers. Furthermore, in this context we should indicate that in many cases one can trace indifference to the constitutional duty to do military service, to the oath of allegiance to the Ukrainian people, military uniform, military ranks, military discipline, and positive military traditions.
Moreover, the causes of corruption in the Armed Forces of Ukraine include conflicts of interests, which the Law of Ukraine "On Prevention and Combating Corruption" interprets as the contradiction between the personal interests of the individual and his or her authority, which may affect the objectivity and impartiality of the decision-making and action or absence of action in the course of exercising of power.
The corruption in the Armed Forces of Ukraine can also be triggered by the lack of supervision of the first persons (Minister of Defense of Ukraine, military and political leadership of the Armed Forces of Ukraine, top administrators of the Armed Forces of Ukraine, Chief of General Staff, and immediate higher-ups). The point is that their control must be ongoing, at least, a regular character, be as comprehensive (companies, battalions, divisions), it should be objective and loud, and–most importantly–effective (the results-based measures should be undertaken).
And certainly in this case not the last place is occupied by discretion empowerment. For example, in accordance with part 6 of the Disciplinary Regulations of the Armed Forces of Ukraine, "in case of disobedience or resistance of a subordinate the commander must take all necessary enforcement measures specified by laws and military regulations right down to the arrest of the culprit and bringing him to justice." This provision is dispositive and empowers (in this case) the commander to choose any punishment for the guilty person. Needless to say, it can be clearly inadequate and unequal to the infringement (misdemeanor, offense).
Another example of discretionary powers can serve part 45 of this Statute, which provides that "in case of failure (inadequate performance) by soldiers to fulfill their duties, breach of military discipline or social order, the commander shall remind him of duty, and, if needed, put him to discipline.” It should be noted that the Commander takes his choice to define this "need".
Clearly discretional powers are expressed in paragraphs 48-52, 62, 68, and 69 of the Disciplinary Statute of the Armed Forces of Ukraine, which include disciplinary admonition applied to ordinary servicepersons (sailors), sergeants (master sergeants), average conscripts (sailors), servicewomen (master sergeant), ensigns (warrant officers), and officers. The choice of such penalties varies from simple admonition to deprivation of appropriate rank. The intermediate penalties include reprimand, severe reprimand, and demotion and so on.
The powers of commanders (chiefs) are discretionary concerning disciplinable exactions imposed on subordinate privates (sailors), conscripts and contract service sergeants (master sergeants), ensigns (warrant officers), and subordinate officers. Powers of section leader, deputy leader of a platoon, platoon leader, company commander (captain 4th class), battalion commander (captain 3rd class) separate battalion commander (captain 2nd class), regiment commander (captain 1st class), and division commander are varied. The commander can do using simple admonition, can warn of unsatisfactory professional competence, and can put on extra duty (paragraphs 53-61, 63-67, 70-74).
The Law of Ukraine "On Prevention and Combating Corruption"[26] of April 7, 2011 defines the basis for preventing and combating corruption in the public and private sectors, indemnity for corruption losses, damages, restoration of rights, freedoms and legitimate interests of individuals and the rights and interests of legal entities, and public interests. In addition, the law imposes restrictions on jobbery, double jobholding, reception of gifts, nepotism etc. As measures to prevent corruption the Law provides for the organization of special checks approved by the President of Ukraine, financial control, implementation of codes of conduct, reconciling conflicts of interests, and anticorruption expertise of draft legal acts.
It should be noted that only the actual implementation of the above measures is a necessary and effective method of corruption control. The appropriate checks are of particular relevance in this context. Here is the dynamics of the results of these checks for 5 years. Thus, in 2007, by results of inspections of the compliance of military officials with the Law of Ukraine "On Combating Corruption" the military procurator's office prepared and submitted to the court 259 protocols about commitment of corruption wrongs by the military officials. Most of these offenses consisted in the misuse by the commanders of their subordinate personnel for their personal benefit. In addition, the military procurator's offices sent to court indictments in 1,000 criminal cases, including more than 300 related to crimes in the economic sphere and swindlery[27].
In 2012 (when the military prosecutor's offices were already liquidated) the personnel of the units for corruption and organized crime control of the Law & Order Service for the first half of 2012: drew up 35 reports on committing administrative corruption offenses making 38% of the total number of reports drawn up by special anticorruption units, including as follows: by results of trials 28 judgments were made, 18 officers were brought to book and fined, in 10 cases the action was dismissed for lack of corpus delicti. The total of 92 reports were drawn up for committing administrative corruption offenses in relation to military and civilian personnel of the Armed Forces of Ukraine in the first half of 2012[28].
However, such statistics do not fully reflect the real situation, since a large number of such crimes and corruption cannot be detected by law enforcement agencies. "Not all offenses are reflected in official statistics (remain latent). And the data that can be obtained for analysis are rather sketchy and often relate to the level of conviction, not to the level of crime”[29].
But according to criminologists, even the level of convictions for committing military crimes remains rather high, and in relative terms it is still on the rise. Committing these crimes significantly undermines combat readiness, and significantly reduces the credibility and trust for military service in the eyes of society and most military, and does not help to fulfill service duties and grant the rights and freedoms of servicemen.
The law pays attention to public participation in the prevention and combating of corruption, accountability for corruption, eliminating the effects of corruption, control and supervision over the implementation of laws in preventing and combating corruption.
In its turn, the Law defines basic concepts such as corruption, corruption offence and so on. Thus, the corruption means the use by a person (the subject of liability for corruption offenses) of her/his office and related opportunities to obtain undue advantage or making promises / offers of such an advantage for herself/himself or others or under promise / proposal or giving undue advantage to the person (entity responsible for corruption) or upon request to other natural or legal persons to persuading that person to misuse her/his office and related opportunities.
In contrast to the Ukrainian legislation, in Russia the Federal Law "On Combating Corruption" gives another definition of corruption. In particular, it specifies that corruption includes malpractice, giving bribes, receiving bribes, abuse of power, commercial bribery or other misuse by an individual of her/his office contrary to the legitimate interests of society and the state in order to receive benefits in the form of money, estate or other property or services of property nature, other property rights for themselves or for a third party or illegal provision of such benefits to the specified person by other individuals.
The absolutely logical is the idea of Ukrainian scientists that the definition of corruption in the relevant Law of Ukraine is extremely unfortunate because actually sends us to such term as "undue advantage". The latter, under the law, refers to "money or other property, advantages, privileges, services…, which are promised or offered without lawful justification.” Such extremely dangerous inferencing may lead to the idea that for qualification it is sufficient to establish the fact of provision (acceptance) of such promises (suggestions). From a formal point of view it is so. But it will be impossible to prove it. This design creates danger of conflict, say theorists, of Article 364 of the Criminal Code of Ukraine "abuse of power or office" and Article 368 of the Criminal Code of Ukraine "bribe-taking". Both of these articles provide liability for wrongful unlawful actions that were actually the result of abuse of power or office[30].
The corruption offense is an intentional act having traits of corruption, which are committed by a person (the subject of liability for corruption offense), for which the law has established criminal, administrative (Article 15 of the Code of Ukraine on Administrative Offences), civil, and disciplinary liability. It should be noted that the Criminal Code of Ukraine does not specify terms of the crime called "corruption". The Civil Code of Ukraine does not use such a concept as well.
The relevant law includes the following virtual corruption offenders: persons authorized to perform the functions of the state or local government (the President of Ukraine, the Verkhovna Rada of Ukraine, Prime Minister of Ukraine, Head of the Security Service of Ukraine, Ukraine's Prosecutor General, military officers of the Armed Forces of Ukraine and other military units and entities established under the laws), persons equated to persons authorized to perform the functions of the state or local government (those who are not civil servants, local government officials, but provide public services (auditors , notaries, experts), and others.).
It should be noted that attributing military officials of the Armed Forces of Ukraine to entities liable for corruption offenses it is necessary to define these persons in the article of the Law, which explains the key terms. It seems not quite clear, who belongs to that category of persons. This assertion comes from the fact that neither the Law of Ukraine "On the Armed Forces of Ukraine" dated December 6, 1991, nor the Law of Ukraine "On Disciplinary Statute of the Armed Forces of Ukraine" of March 24, 1999, or the Law of Ukraine "On Military Duty and Military Service” of March 25, 1992 do not use such category as “military officer of the Armed Forces of Ukraine.”
The note 1 of Article 423 of the Criminal Code of Ukraine clarifies that the term military officers mean military chiefs and other servicepersons who hold an office permanently or temporarily related to the implementation of organizational and managerial or administrative-economic duties or perform such duties by special order of the authorized commander. But this is a special norm in the criminal field, so the concept of military officer should be fixed in the basic regulation directly regulating the military sphere.
In this regard, we deem it necessary to clarify that the term is applied to the Armed Forces of Ukraine and other military formations.
At the discrepancies of Law of Ukraine "On Prevention and Combating Corruption" and the Criminal Code of Ukraine points V. Ya. Tatsiy. The scholar points out that the law is inconsistent with many current norms of the Criminal Code of Ukraine concerning responsibility for crimes of corruption, and some of its provisions are not only confusing but sometimes outright false both in terms of their meaningful presentation, and by legal and technical wording, formulation and structuring[31].
V. Harashchuk draws attention to the conflict as well. The author notes that the Criminal Code of Ukraine means an officer, the Code of Ukraine on Administrative Offences means an official, the Law of Ukraine "On Prevention and Combating Corruption" mentions both officer and official. The fact is that in 2001 the Criminal Code of Ukraine replaced the term "officer" with the term "official", whereas the administrative law logically uses both terms differentiating them. Official may not be a white-collar worker, while the white-collar worker is an officer (department officer) with wider authority than an ordinary employee[32]. In our case it should again be emphasized that the Law of Ukraine "On Prevention and Combating Corruption" includes the concept of "military officer of the Armed Forces of Ukraine", which also requires clarification.
At last it is necessary to draw attention to the fact that the information on the implementation of anti-corruption legislation at the Ministry of Defense of Ukraine and in the Armed Forces of Ukraine in the first six months of 2012 indicates that the most common offenses for which the servicepersons of the Armed Forces of Ukraine were brought to administrative responsibility were as follows: violation of restrictions on the use of official position––37, offering or giving undue benefit––2; violation of restrictions on compatibility with other activities––5; breach of statutory restrictions on receiving gifts (donations)–1; fiscal control violations––8; illegal use of info that became known to the person in connection with the performance of official duties––9, failure to take measures against corruption––2. During this period, 55 soldiers and 9 employees of the Armed Forces of Ukraine were brought to administrative action[33].
During their work aimed at eliminating the causes and conditions that had led to administrative corruption offenses by the servicepersons and personnel of the Armed Forces of Ukraine the special anticorruption units of the Military Law & Order Department of the Armed Forces of Ukraine undertook comprehensive measures to prevent manifestation of corruption, namely: measures for the prevention, detection and suppression of corruption of military officers of the Armed Forces of Ukraine, preventive measures intended to prevent corruption offenses in military units; measures intended to carry out investigation of corruption offenses, considered the appeals of the citizens of Ukraine, prepared proposals and agreed upon regulations; drew up current documents on combating corruption and accounting of corruption cases that came to the Law & Order Service.
CONCLUSIONS AND RECOMMENDATIONS:
The problem of human rights of servicepersons in various spheres of social life is rather acute and urgent. It should be noted that in 2012 the military procuracy was liquidated, which isn’t a positive step forward. Such liquidation of important structures may have negative impact on the exercise of powers of organs that will obtain some of the powers of liquidated structures by virtue of inconsistency of law and lack of special practice.
The legislation of Ukraine is far from being perfect; it primarily concerns the Laws of Ukraine "On Military Duty and Military Service", "On the Election of Deputies of the Verkhovna Rada of the Autonomous Republic of Crimea, local councils and village, town and city mayors”, Disciplinary Statute of the Armed Forces Ukraine etc.
Many factors influence the corruption in the Armed Forces of Ukraine, as in any other public structures. In general, the anticorruption legislation of Ukraine represented by the Laws of Ukraine "On Principles of Prevention and Combating Corruption", "On amendments to some legislative acts of Ukraine concerning responsibility for corruption" is a definite step in corruption control. However, the measures taken to reduce such negative phenomena must be implemented together, and not accidentally, and be ongoing rather than fragmented. Moreover, the corruption control must allow for the specifics of the Armed Forces, details of service in its units. In this context, we consider actual liquidation of military prosecutors inappropriate.
In connection with the discussion of the acute problems of the Ukrainian army we suggest the following recommendations:
1. Article 4 of the Disciplinary Regulations of the Armed Forces of Ukraine to supplement with the provisions stating that the military discipline makes each serviceman to respect the rights and freedoms, honor and dignity of other serv icemen, and respect the individuality of each.
2. Part 8 of Article 17 of the Law of Ukraine "On Military Duty and Military Service" to present in the following redaction: "the draft deferment for education for the entire period of study is granted to citizens of draft age who are studying in universities of Ukraine or abroad with full-time instruction, including post-graduate studies.”
3. The laws on elections should be brought into compliance by removing the term "leave" when it comes to enabling the servicemen to exercise their civil right to vote, and use instead the term "leave pass" and not allow such a substitution of concepts. To imperatively regulate granting the leave pass to servicepersons on duty to exercise their right to vote.
[1] Constitution of Ukraine adopted at the Fifth Session of the Verkhovna Rada of Ukraine, June 28, 1996 / / Vidomosti Verkhovnoyi Rady Ukrayiny. - 1996. - no. 30. - p. 141.
[2] Constitution of the Russian Federation of December 12, 1993 / / Constitutions of foreign countries: manual. / V.O. Seriogin, Yu.M. Kolomiyets, OV Martseliak et al. / under the editorship of VA Seriogin. - Kharkiv: "Finn", 2009. - p. 221-242.
[3] Zakomoldyn RV On securing military secrets in reforming military legislation / RV Zakomoldyn / / Voyenno-yuridicheskyi zhurnal. - 2008. - no. 3. - p. 11.
[4] On the alternative (non-military) service in Ukraine: the Law of Ukraine from December 12, 1991 no. 1975-XII / / Vidomosti Verkhovnoyi Rady Ukrayiny. - 1992. - no 15. - Art. 188.
[5] Constitution of Ukraine: Scientific and Practical Commentary / VY Tatsiy, Y.P. Bytiak, Yu.M. Hroshevoy et al. - Kharkiv: Pravo Publishers, Kyiv: Concern "Publishing House "In jure", 2003. - p. 192.
[6] Constitution of Ukraine adopted at the Fifth Session of the Verkhovna Rada of Ukraine, June 28, 1996 / / Vidomosti Verkhovnoyi Rady Ukrayiny. - 1996. - no. 30. - Art. 141.
[7] On amendments to some legislative acts of Ukraine on the improvement of Prosecution: Law of Ukraine adopted on September 18, 2012 no. 5288-VI / / Holos Ukrayiny. - no. 182.
[8] On the Basics of National Security of Ukraine: Law of Ukraine, June 19, 2003 № 964-IV / / Vidomosti Verkhovnoyi Rady Ukrayiny. - 2003. - no. 39. - Art. 351.
[9] Balance, prudence and temperance: the condition of arms of the Ukrainian army is critical / / http://sd.org.ua/news.php?id=15296
[10] Balance, prudence and temperance: the condition of arms of the Ukrainian army is critical / / http://sd.org.ua/news.php?id=15296
[11] Army for parades? / / Http://dt.ua/POLITICS/armiya_dlya_paradiv-92925.html
[12] Army for parades? / / Http://dt.ua/POLITICS/armiya_dlya_paradiv-92925.html
[13] Army for parades? / / Http://dt.ua/POLITICS/armiya_dlya_paradiv-92925.html
[14] Awful truth about Ukrainian Army: 90% vooruzhenyy nepryhodno / / http://dnepr.on-nash.dp.ua/mnenie/unasbolsenetarmii
[15] Army for parades? / / Http://dt.ua/POLITICS/armiya_dlya_paradiv-92925.html
[16] Salamatin: condition of arms and military equipment in the Ukrainian army is critical / / http://economics.unian.net/ukr/detail/129390
[17] Salamatin: condition of arms and military equipment in the Ukrainian army is critical / / http://economics.unian.net/ukr/detail/129390
[18] Salamatin: condition of arms and military equipment in the Ukrainian army is critical / / http://economics.unian.net/ukr/detail/129390
[19] Armed Forces of Ukraine: when arms adorn the report, but not the army / / http://wartime.org.ua/1410-zs-ukrayini-koli-ozbroyennya-prikrashayut-dopovd-ale-ne-armyu.html
[20] On the Protocol between the Government of Ukraine and the Government of the Republic of Poland amending the Agreement between the Government of Ukraine and the Government of the Republic of Poland on mutual deliveries of weapons and military equipment and services in the military-technical field: Cabinet of Ministers of Ukraine of 26 September 2012 no. 708-p. - Uriadovyi Kuryer. - 2012. - no. 179.
[21] Soldiers of Prykarpattya voted / / http://report.if.ua/portal/novyny/viyskovosluzhbovtsi-prykarpattya-progolosuvaly
[22] Cherepanov, V.V. Fundamentals of public service and staffing policy: textbook for students / V. Cherepanov. - 2nd ed., Rev. and add. - M.: UNITY-DANA, 2010. - p. 521.
[23] The world calls Ukrainian corruption "a disgrace to the nation" / / Ukrayinska Pravda. - 26.10.2010. / / http://pravda.com.ua/news/2010/10/26/5515166/.
[24] Ukraine among the "losers" in the ranking of corruption perception // http://acrc.org.ua/ua/news-and-events/news/all/ukrayina-sered-luzeriv-v-rejtyngu-spryjnyattya-korupcziyi.html
[25] Azarov does not believe in the objectivity of Transparency International on the issue of corruption in Ukraine / / http://tyzhden.ua/News/60465
[26] On Principles of Prevention and Combating Corruption: The Law of Ukraine , April 7, 2011 / / Vidomosti Verkhovnoyi Rady Ukrayiny. - 2011. - no. 40. - Art. 404.
[27] Medvedko O. On the eve of the Day of Armed Forces of Ukraine / O. Medvedko / / Legislation in the military sphere. - 2007. - no. 12. - p. 3.
[28] Information on the requirements of anti-corruption legislation in the Ministry of Defence of Ukraine and the Armed Forces of Ukraine in the first half of 2012 / / http://mil.gov.ua/index.php?part=corruption&lang=ua
[29] Criminology: General and Special Parts: textbook / I.M. Danshyn, V.V. Holina, M. Yu Valuyska et al., under the general editorship of. V. V. Holina. - 2nd ed. revised. and amended. - Kharkiv.: Pravo, 2009. - p. 264.
[30] Garashchuk V. Anticorruption legislation of Ukraine in 2011: prospects of development and implementation / V. Garashchuk / / Yearbooks of Ukrainian law: memoirs. / executive editor A.V. Petryshyn. - Kharkiv: Pravo, 2012. - no. 4. - p. 175.
[31] Tatsiy V.Ya. Ten years of the Criminal Code of Ukraine: achievements and problems of implementation / V.Ya. Tatsiy / / Yearbook of Ukrainian law: memoirs. / executive editor A.V. Petryshyn. - Kharkiv: Pravo, 2012. - no. 4. - p. 495.
[32] Harashchuk V. Antykorruptsyonnoe legislation of Ukraine in 2011 year: prospects of development and Application / V. Harashchuk / / Yearbook Ukrainian law: memoirs. / executive editor A.V. Petryshyn. - Kharkiv: Pravo, 2012. - no. 4. - p. 177.
[33] Information on the requirements of anti-corruption legislation in the Ministry of Defence of Ukraine and the Armed Forces of Ukraine in the first six months of 2012 / / http://mil.gov.ua/index.php?part=corruption&lang=ua