Human rights in Ukraine 2009 – 2010. 25. Rights of the servicemen
1. Some general issues
Systemic transformations in various areas of governance and public life have been taking place in Ukraine since its independence was declared. It is noteworthy that in this context the problems, faced by the Army, seemed somewhat insignificant. Sometimes it even looked as if the military led their own life, totally isolated from the rest of the world. This state of things, naturally, led to the consequences, which are quite obvious. There is no need to join the Ukrainian Armed Forces or any other military unit to see the difficulties related to the operation of the state military organization and service in the army. Unfortunately, not only Ukrainian citizens but the world community as well could witness the instances when non-compliance with service regulations resulted in disasters. Thus, for example, in the course of exercise, the rockets launched by the soldiers hit the civil airplane carrying foreign citizens on one occasion and a residential building on another.
At Sknyliv airfield (Lviv oblast’) a plane crashed during a demonstration flight taking the lives of 77 people.
Unfortunately such examples are numerous. One can also recollect the explosions at the ammunition depots in Novobohdanivka (Melitopol raion, Zaporizhzhya oblast’), which caused the death of 5 persons and injuries of various severity of another dozen. In 2008 a number of ammunition depots explosions occurred nearby Lozova town (Kharkiv oblast’). Safe maintenance of these depots is also the responsibility of the military. In land forces training centre 169 ”Desna” a tragic event, caused by violation of the tank shooting regulations, happened in 2005. As a result two soldiers were killed and one was injured.
Therefore, one can see that such occurrences happen rather often, and unfortunately there is no guarantee that they won’t happen in the future.
Very often these tragedies, permanently occurring in our country, are caused by the violations of service regulations and negligence of professional duties by military personnel. However, first and foremost, they demonstrate the systemic problems present in the Ukrainian Army, inefficient functioning of the state military organization, inadequate conditions for the regular service, lack of tradition of public control over the developments “inside the barracks” and many other crucial issues in this area. The officials of various ranks, however, are reluctant to admit their mistakes or to learn from them, while the law enforcement bodies are just looking for the scapegoats to make them legally liable.
The primary mission of the military organization of any state is ensuring national security. In order to fulfill this complex task it is not enough to set up respective structures. It is necessary to ensure the appropriate military service and appropriate performance of functions by each and every serviceman. This is the first prerequisite of military efficiency in any armed forces service unit, and, therefore, in a state military organization as a whole. However, in real life ensuring appropriate service in the armed forces is a complex task, which encompasses a whole range of measures undertaken by the state, society and individuals. Meanwhile, these issues have never been researched on theoretical level, while practical expertise has been accumulated, but never systematized.
Besides, it is worth mentioning that Ukraine as an independent state did not have to set up all the aforementioned structures, as it inherited them as Soviet Union legacy. Under the rigid inheritance laws the young state received not only a huge military organization, but also the whole set of its problems. Moreover, these problems aggravated and increased in number due to the changes in the military structures’ “surrounding”. Namely, the state tried to make transition from administrative-command economic system to the market economy, from ideological monism to ideological diversity, from totalitarian regime to the democratic one. Despite of the fact that this goal was not achieved even till present time, this transition led in the military area to ruination and decay of the old but well-developed mechanisms of the internal army operation, without providing for the new effective mechanisms to replace them.
Due to the lack of a clear program for the Ukrainian army reform, authorities undertook the measures aimed at promoting the policy (unfortunately, mostly foreign) of integration into North-Atlantic security space. This policy can be judged in different ways, but it shows more or less clearly the tendency of development in the military organization of Ukraine. This tendency was spelled out in the numerous normative and legal acts, including the Law of Ukraine “On the Basics of National Security of Ukraine”.
However, presently current administration rejected this course of action. The Law of Ukraine “On principles of domestic and foreign policy”, passed on July 2010, testifies to the fact. The essence of the problem, however, consists not in the rejection of NATO-integration course, but in the total absence of any general course for getting army structures out of systemic crisis, overcoming the negative aspects of the difficult legacy Ukraine inherited in this area.
2. Legal regulation aspects – issues of observance and protection of servicemen’s rights
Ensuring adequate operation of the state military organization and service in the armed forces is a complicated national function subject to maximum normative regulation, due to a number of factors. Under the Constitution of Ukraine, the military organization is entrusted with accomplishing rather specific and, at the same time, large-scale and complicated tasks. These ambitious and important tasks envisage involvement of substantial power resources; significant forces and resorts of the military organization are required for their implementation.
The tasks, defined by the Constitution of Ukraine, mainly consist in repulsing armed aggression of other states, acting in case of armed conflicts and also undertaking certain preventive measures, aimed at safeguarding national security of Ukraine, avoiding war, maintaining world peace and safety. However, the misuse of the power and resources of the military organization creating the threat for the state sovereignty, human rights, law and order, globally recognized principles and norms of the international law, can lead to unexpected consequences, which will write a black page in the history of the country or even world history and throw the state several years or even centuries back in its development.
The military sphere is regulated, alongside with the Fundamental Law, by a number of laws: “On Military Duty and Military Service”, “On Defense of Ukraine” , “On Armed Forces of Ukraine” , “On Social and Legal Protection of the Servicemen and their Families” etc. Moreover, another Law of Ukraine was passed and made public – the Law “On Democratic Civilian Control over the State Military Organization and Law Enforcement Structures” , which was to become instrumental in promoting active participation of the civil society in exercising control over the security agencies of the Ukrainian state, namely, over the military and the law enforcement structures, as well as over the individuals serving in the army, and ensuring their compliance with the rigid norms, established by the Constitution. It is noteworthy, that despite of rather detailed regulation of the army-related issues, the legislation defining this area is rather obsolete and inconsistent. This situation not only complicates the resolving of major issues, but, first of all, does not provide for the guaranteed implementation of rights and freedoms of the servicemen.
In particular, despite of the declared transition to the contractual basis of army service, the respective law still underlines the compulsory nature of the conscription. The Law of Ukraine “ On Military Duty and Military Service” from its very name to the spelling out of the procedure for armed forces’ and other military units’ formation (article 4) – stresses the compulsory nature of military service as opposed to the contractual conscription and does not declare the right of the equal access to this latter. Besides, this Law equates the military duty with the right of the equal access to military service. Thus, article 1 of part 3 stipulates that military duty includes both voluntary enlisting (under the contract) and compulsory conscription to the army. As to the last provision, it is indeed included into the concept of “military duty”, while voluntary joining the army can under no circumstances be regarded as “duty”. The contractual enlisting of a Ukrainian citizen to the army, by its legal nature is a constitutional right (not obligation), defined as potential and not compulsory individual behavior, aimed at establishing legal relationship between and individual and the state in reference to the service in the army.
Such normative regulation of the issue not only fails in accelerating the process of transition to the contractual basis of army service, but incessantly creates additional problems related to the realization of Ukrainian citizens’ right of the equal access to the service in the army (p. 2 article. 38 of the Constitution of Ukraine) The fact that professional military service is not competitive in current job market further aggravates the situation. However, if, according to the reports of Ministry of Defense of Ukraine for 2009, the upkeep costs for one contractual soldier serving as a shooter almost equal the respective costs for a conscript at the same position, then obviously competitiveness of such profession is out of question.
The Statutes of the Armed Forces of Ukraine compiled to regulate all the aspects of the service not only in the armed forces, but also in all the other units (State Border Service of Ukraine, Security Service of Ukraine, Internal Troops of the Ministry of Internal Affairs and some others) deserve special attention. In practical operation these statutes aggravate significant problems concerning realization and protection of the constitutional rights and freedoms of the servicemen.
The Statute for the Internal Troops of the Armed Forces of Ukraine defines the servicemen rights in fragments, without paying any attention to the fundamental, basic or underlying principles of an individual’s status. Such fundamental constitutional principles as equality, respect of human dignity and some others are often neglected in the army service. Meanwhile, not only should they be declared legally, first of all, in the Ukrainian Armed Forces’ Statutes, but they should become a guiding principle in the operation of senior officers in the state military and every serviceman equally. These principles should be imprinted in the consciousness of all those serving in the army as well as those intending to serve in any military units. The essence of the problem is that the principles of human rights are often ignored both in admitting people to military service and in serving.
In actual operation the exercising of these rights entails a whole range of problems, arising from either lack of awareness or wrong perception of the rights. Thus, for example, in a fixed-term service the equality principle is ignored because for many years it’s been neglected in everyday military operation. This neglect was manifested in granting completely unlawful privileges to the servicemen, based on principles of seniority, soldier’s nationality and other “criteria”. No privileges of that sort are stipulated by the law; nevertheless, they are widely spread in practical operation and sanctioned by sergeants, first sergeants, ensigns and even officers with the goal of absolving themselves from the performance of their duties, establishing a semblance of law, order and discipline, thus ensuring training and upbringing of young generation.
These practices, however, lead to adverse consequences, devaluation of human rights, discrediting of military services, deformities in sense of justice among servicemen, detriment to combativity of military units and other negative effects. The violation of equality principle leads to the abuse of these unlawful privileges by servicemen who have them. They become deeply convinced that they have essential superiority over other servicemen. Demonstration of this superiority is manifested in all types of physical and moral violence, humiliation of honor and dignity of other soldiers, as well as in threat to their lives and health. On the other hand, it leads to health deterioration in servicemen (including mental illnesses), sleeping disorders, phobias etc.
The violence can be used even for minor digressions, committed by new soldiers. “Sometimes small things, like attaching the collar or doing the bed incorrectly, grow into serious problems and become a cause for humiliations, and sometimes, open tortures, which can undermine young man’s self-esteem and lead to the unpredictable consequences”. These concerns are absolutely well-grounded, as this situation remains most typical, including years 2009 and 2010.
Thus, servicemen who have served longer and were charged by superiors with training the young draftees, in their desire to prove their alleged superiority over such soldiers, order them to do the types of job that sometimes are within the boundaries of military service and sometimes are not. On the other hand, when the soldiers make even slight mistakes in doing the job, first they are reprimanded verbally and then, in violation of the established rules of relationship between servicemen, regularly subjected to physical violence. This violence results in various consequences, including severe bodily injuries and sometimes death of a serviceman. Sometimes humiliations, harassment, beatings and persecutions lead even to suicides.
Taking into account that Armed Forces Statutes not only regulate all the aspects of army operations, but are comprehensively studied by the servicemen, the inclusion of fundamental constitutional principles concerning rights and freedoms of servicemen into them is absolutely necessary, as well as their most detailed elaboration and interpretation.
Besides, the duties of commanding officers (superiors) spelled out in the Statute, do not stress their natural paramount duty, i.e. to ensure rights and freedoms of servicemen, subordinate to them. Some Statute provisions define that an officer in command must implement the measures aimed at ensuring soldiers’ safety in a military unit; however, it says nothing about the duty of ensuring appropriate everyday life, health, honor and dignity, inviolability and safety of every serviceman and military personnel as a whole.
The biggest problem, though, lies in the fact that the statutes “contribute” to the closed nature of the army, to the concealing of real situation concerning rights and freedoms of servicemen, especially those who serve fixed terms. A large number of statute provisions significantly complicate the protection of rights and freedoms of servicemen, and sometimes make it totally impossible. There are certain “hidden” norms and even the norms which can be used by a “capable commanding officer” to restrict the use of basic means of protecting rights and freedoms by a serviceman.
To begin with, the daily routine, regulated by the article 201 of Statute of the Internal Troops of the Armed Forces of Ukraine does not envisage any time for a serviceman to approach law enforcement bodies, other governmental structures and non-governmental organizations to protect his rights and freedoms. The only thing, stipulated by the statute is the time when commanding officers are available to listen to the personal problems of servicemen. This is an administrative provision, which in practice proves to be inefficient. The thing is, any civilian also can approach authorities for the protection of his/her rights and freedoms administratively, and, in case of failure, go even further – file complaint in court. The daily regulations for the servicemen of fixed term do not provide for any other instruments for quick response to rights and freedoms’ related violations apart from approaching their direct superiors.
Prima facie, a serviceman, whose rights were violated, can share this fact with his visitors. Indeed, at the time of the visits, the servicemen of fixed term the latter can not only complain of the violations of his rights and freedoms and tell about specific abuses, but parents have an opportunity to physically examine their child, and to see, as the case may be, the results of physical violence used against him in the course of service. Here, however, we face another obstacle, created on purpose by military statutes.
Thus, article 228 of the said Statute establishes general rule for the servicemen of fixed term and contractors, i.e. that they can be visited in time envisaged by the schedule, in special premises designated for that purpose in a military unit. On the other hand, the same article (part 2) specifies that the visitors, wishing to see a serviceman, are let into the room by permission from the guard at the check-point.
Thus, one needs a permit to visit at a certain time, in a certain room. In fact, such visit can be refused, even if a visitor complies with all requirements. So, it deprives a soldier of the opportunity to inform anyone about violation of his freedoms and rights.
Another opportunity arises when a soldier goes on leave and can inform relevant agencies of the assault and be examined for the evidence of battery. The problem is to obtain the leave. Moreover, the Statutes allow commanding officers to refuse granting the leave to such servicemen without any cause, so that permission to go outside the military unit deployment can also become a problem. In this case the Disciplinary Statute of the Armed Forces of Ukraine can be very “instrumental” for commanding officers. This normative/legal act, establishing disciplinary liability of the servicemen, lacks the most important characteristics of the offence and the guarantee against illegal bringing to account, recognized by the whole civilized world – i.e. illegality principle (there is no offence if it is not defined by the law).
It means that the Statute does not define an offence, but foresees only the types of punishments and defines who should measure them and in regards to whom. This engenders subjectivity, lack of objective judgment and rather often unjust use of disciplinary liability measures. This legal provision allows for depriving a serviceman of his right of leaving the boundaries of a military unit deployment, including the serviceman whose rights were violated and who must tell about his disaster “outside the barracks”.
Thus, it becomes evident that the Armed Forces Statutes set up an order, under which a serviceman of fixed term, whose rights are violated, will have tough time trying to break out from the barracks and inform law enforcement agencies and public organizations, let alone his own parents, of the offence. The statutes, therefore, do not promote realization and protection of rights and freedoms of servicemen, especially those of fixed term service.
They also lead to the whole range of human rights-related problems.
These issues acquire utmost importance for military service and military operation, especially for observance and realization of the servicemen’s rights in the light of the fact that undivided authority, subordination stipulating the possibility and necessity of issuing orders are characteristic prerequisites of military service. Under the article 11 of the Statute of the Internal Troops of the Armed Forces of Ukraineeach serviceman must unconditionally obey commanders’(superiors’) orders, while disobedience leads to legal liability, including the criminal one, spelled out in the articles 402 and 403 of the Criminal Code of Ukraine .
At the same time the Constitution of Ukraine (article 60) also addresses this issue and establishes a general rule, under which no one shall obey obviously criminal orders or instructions. Giving and obeying obviously criminal order or instruction entails legal liability. In accordance with legislative logic this rule should be elaborated at current legislative level.
Thus, article 6 of the Disciplinary Statute of the Armed Forces of Ukraine establishes that the commander’s right is to issue orders and commands, while the duty of a serviceman is to obey them, unless they are of obviously criminal nature. The problem, however, lies in the fact that the said Statute does not offer a mechanism for refusal to obey such an order; on the contrary, it stresses only the importance of obeying the orders and envisages serious punishment for those who fail to do so. Therefore, the Statute does not elaborate on the constitutional provision concerning refusal to obey obviously criminal orders, as it does not offer a real mechanism for the refusal to obey such orders. This presents a real threat for those who serve in the army for a fixed term, specifically in the domain of observing rights and freedoms of servicemen and other individuals.
It is noteworthy that this issue found better regulation in the Law of Ukraine “On Public Service”, as well as in the Disciplinary Statute of the Internal Affairs Agencies . These normative acts stipulate that a subordinate not only shall disobey such orders, but also shall report his/her refusal to the person who issued the order. If this latter insists on obeying the order –refuse again to do it and report, instead, to the superior commanders. Similar provisions should be included into the Statutes of the Armed Forces of Ukraine.
The statutes, however, also contain provisions which are complete nonsense. Thus, article 241 of the Statute of the Internal Troops of the Armed Forces of Ukraine specifies that every serviceman should take care of his health, adhere to the norms of personal and public hygiene, while each commander (superior) must ensure adherence to the norms of personal and public hygiene in his military unit (detachment). Alongside with that, article 242 of the said Statute spells out the meaning of the concept of “strict adherence” to norms of personal hygiene: 1)morning and evening washing with teeth-cleaning; 2) washing one’s hands before eating; 3) timely shaving, cutting one’s hair and fingernails; 4) weekly bathing in a bathhouse with change of underwear and bedding, foot-wraps and socks; 5) keeping one’s uniform, boots and bedding clean; timely changing of the under-collar.
Hence, a logical question – how is it possible to strictly observe norms of personal hygiene, washing in a bathhouse and changing underwear, socks etc once a week!?! Can a person that has not washed for a week, having strenuous physical exercises every day, preserve his human dignity? Can this person be healthy? Altogether, what this provision has to do with the notion of “hygiene”? This Statute provision makes one think that its authors have never seen the Constitution of Ukraine, as it, alongside with other similar provisions, not only defies common sense, is contrary to normal existence of a human being and elementary hygienic rules, but also is at conflict with a whole range of constitutional provisions. For example, article 3 (a person, his/her health and dignity are recognized as highest social value in Ukraine); part 5 of article 17 (the state ensures social protection of the citizens of Ukraine serving in the Armed Forces of Ukraine and other military formations); article 21 (all people are free and equal as to their dignity and rights. Rights and freedoms of a person are inalienable and inviolate); article 24 (citizens have equal constitutional rights and are equal in the face of the law); parts 1 and 2 of article 28 (every person is entitled to respect of his/her dignity, no one can be subject to treatment humiliating his/her rights); part 1 article 41 (every person has a right to health care) et al. These norms become even more relevant, once we consider the fact that we are talking here about young persons between 18 and 25 years of age, that is, young men drafted to the Army and performing their duty for the benefit of their country and society at large.
Violence still remains another serious issue in the functioning of the Armed Forces of Ukraine and other military units. It is noteworthy, that of late it has become less widely spread due to various factors ( limiting the service term to one year, permanent public attention and monitoring of this problem, more responsible [though far from adequate] attitude of official bodies). According to the Ministry of Defense of Ukraine, recently the number of deceased servicemen also decreased. Thus, in 2008, 14 servicemen perished in the course of their service, and 62 – out of service, while in 2009 these figures amounted to 8 and 51 respectively. In 2008, one soldier died as a result of “non-statutory relations”, while in 2009 – 0. At the same time the number of soldiers who committed suicide increased from 12 in 2008 to 17 – in 2009.
On the other hand, the official statistics leaves “on the margins” a large number of servicemen’s assaults. However, the whole system of divulging and identifying such infringements (army and generally criminal offences, committed in the military and seriously affecting the constitutional guarantees of servicemen’s rights and freedoms) is not helpful. Same applies to the Statutes of the Armed Forces of Ukraine. The system dates back to the soviet times, and has not undergone any significant changes since, either in 2009 or 2010 in particular. We are talking about the investigation procedure, which constitutes the basis for initiating actions aimed at uncovering offences and their perpetrators. In this case it means undertaking urgent measures by the respective bodies, which must quickly and efficiently respond to situations that occur. To that end, they should have direct connections to the venue and potential perpetrators.
That’s why it is a commanding officer of a military unit, who is the person in charge of investigating the offences, committed by servicemen subordinate to him. One should, however, keep in mind that a commanding officer, under the Statutes of the Armed Forces of Ukraine, is in charge of many other tasks, investigation being only one of them. The officials in charge must, first and foremost, provide guidance and ensure order in their respective areas of operation. At the same time, they are responsible for maintaining discipline and order and preventing criminal activities. That’s why the law charged them with the duty to investigate.
Thus, the substantial list of the duties of a regiment commander (captain of I and II class, special battalion commander), defined by the article 67 of the Statute of the Internal Troops of the Armed Forces of Ukraine, part 16, includes his duty to ensure legal education of the servicemen, to bring an action and carry out the investigation in case of criminal offence, committed by a serviceman.
Alongside with that, there are certain obstacles to carrying out appropriate discovery and investigation of the crimes, committed in a given military unit. They root in the fact that the commander as investigator is not interested in discovering a crime in a unit subordinate to him, as it deteriorates the unit’s prestige, for which he is also responsible. Parts 16 and 17 of the article 67 of the aforementioned Statute, among other duties entrust him with a duty to educate soldiers in legal area and take measures to prevent crimes and other offences. If he uncovers a crime, his superiors immediately will accuse him of inadequate performance of his duties.
That’s why the unit commanders rather often hush up or hide the committed crimes, both from public at large and from governmental bodies, including the prosecutor’s office. One should be aware of the fact that in this case they are committing a crime themselves, under the article 426 of the Criminal Code of Ukraine, which establishes criminal liability for conscious non-prevention of a crime, committed by a subordinate, or other purposeful inactivity, committed by a military, charged with certain duties, if it led to substantial damage.
However, despite of the possible legal consequences, i.e. criminal liability, military units’ commanders persist in their attitude. This conclusion is supported by the results of a study carried out by V.V.Bondarev, who states that on the average only 13 % of the whole bulk of crimes, related to violations of statutory requirements on relations between the servicemen in the Armed Forces, end up in official conviction; it means that at least 80 % of the total bulk of criminal offences get no response - the appropriate criminal lawsuits are not brought against the perpetrators.
To begin with, the offences consisting in violations of statutory requirements on relations between the servicemen apart from relations of subordination, manifested in beatings, other forms of violence leading to slight body injuries, harassment, jeers and some other offences, are often hushed up by unit commanders.
These latter often suppress even graver offences, involving, for example, medium or heavy body injuries. The military authorities go to unprecedented lengths to conceal and cover the crime. The cases are known when commanders sent the victims on vacation leave out of turn and placed them in private civilian clinics on the preliminary agreement with the victim, his parents and other persons concerned, demanding non-divulging of the information.
These issues become especially crucial considering the fact that discovery of crimes constitutes most important element in the struggle against criminality in the army. If the investigation entity uncovers a crime, documents it in due procedure, investigates it and submits the case to the court, then the offence will definitely become known to the public at large, as the trial is open and transparent. However, if in real life, instead of uncovering an offence, the investigation entity covers it, then, accordingly, the case is not filed in court, the perpetrators go unpunished, the public is unaware of what happened and no new offences can be prevented. According to criminologists, the reliable statistics on “dedovshchina” does not exist, while lenient attitude often leads to the further deepening of disrespect to human rights and freedoms; this disrespect, once rooted in a soldier’s consciousness, can later become a criminogenic factor.
Unfortunately this practice persists and is still in place despite all the efforts to do away with it. In particular, a special law enforcement structure – Military Office of Law and Order with the mission of maintaining law and order and military discipline among the servicemen, preventing crime and law violations, detecting and stopping them, performing other important tasks, was set up within the Armed Forces of Ukraine. However, the problem at hand is not about creating new law enforcement agencies, although it is a positive sign on the part of the state trying to fight the crime in the military, but about raising of legal awareness among all the servicemen, getting rid of the adverse legacy left to the military by many years of its functioning within a totalitarian regime, first of all, in the area of legal regulation.
These are just few examples of existing gaps and shortcoming in the “guidelines for the servicemen”; they demonstrate, however, that there are a lot of unresolved problems in this domain. The most crucial among them is that the principal postulate of modern constitutionalism, i.e. that a person and not a state represents the highest social value – is neither taken into account nor reflected in the Statutes.
3. Does a state have right (moral and legal) to coerce Ukrainian citizens to serve in the army?
As of today, the issue of transition to exclusively contractual military service has become most topical. In other words, the state should provide the opportunity for Ukrainian citizens to serve in the army only on the voluntary basis. It is noteworthy that the current Constitution of Ukraine as opposed to the former one (i.e. the Constitution of the UkrSSR of 1978) does not contain any imperative requirements as to the army draft and allows to legally embrace any principle for Armed Forces and other military units’ formation.
At the same time, mandatory fixed-term service in the army is still stipulated legally. The Law on the principles of foreign and home policy (article 6) stipulates that one of the basic principles of the home policy concerning national security and defense is eventual transition to the Armed Forces formation on contractual basis, especially for the specialties, decisive for battle-worthiness of the units. Characteristically, certain political forces formulated immediate transition to the contractual principle as their priority task. The problem, however, cannot be resolved at once, so no positive changes have been achieved over the years 2009 and 2010.
Currently the legislation of Ukraine is developing a model, under which Ukrainian citizens can become soldiers not only voluntarily, but also through mandatory conscription, because the law, as stated above, envisages citizens’ compulsory draft as a means of military units’ formation at the time of peace. The draftees must meet the requirements spelled out in the law. Thus, under the article 15 of the Law of Ukraine “On military duty and military service”healthy male citizens of Ukraine, who completed 18 years before they day of their joining military units, are drafted for fixed-term service at the time of peace, as well as older persons, who have not completed 25 years and do not qualify for exemption or draft deferment.
It must be clear that the military anticipates that the persons within its sphere of operation not only have all the necessary and sufficient skills and knowledge, but are also willing to perform the military duties, as any area of human activity will be successful and bring positive results only if the persons involved are interested in willing to do it. In its turn, the military service is not only a complex, responsible, and even dangerous type of human activity. Not every male person in this country has the necessary inclinations to perform it, even if he meets all the requirements stipulated by the law. The practical experience shows that forced activity without permanent control or strong coercion does not bring high quality results.
Moreover, even under total control and threat of punishment the job can be done only technically, as any creativity or initiatives are out of question. According to V.V. Rechytsky, “historically and legally creativity evolution is closely linked to the transition from forced work to work, delivered on the basis of freely signed contract (agreement). The principle of work remuneration at a certain point became more efficient than the fear of punishment and decided the fate of many creative endeavors. As to the role of law in the process, it replaced the imperative labor regulation model with dispositive model, substituting legal duty with subjective right”.
Similar transition should take place in the military sphere, as this area of human activity needs creative thinking and approach as much as any other. Doubtless, the measures taken by the state to provide appropriate motivation for the service in the army are of utmost importance. In any case it is desirable that the ranks of the military organization of our country are remanned by conscious and willing citizens. The world practice “confirms that professional armed forces formed on voluntary contractual basis are the best in safeguarding country’s security”.
The fact that, under the norms of international law and part 3 of article 43 of the Constitution of Ukraine, the service in the army is not considered forced labor does not make it an easier or less specific type of human activity. One can, therefore, conclude that cancellation of mandatory service is, on the one hand, called for by state interests, as it affects the quality of military service and performance of every serviceman’s functional duties, and, finally, the fulfillment of ambitious tasks entrusted to the military organization. On the other hand, it is for the benefit of an individual, because when a person is forced to do something he is unwilling to do, when he lacks required skills or inclination etc., the negative consequences might follow (mental disorders etc.). Besides, the question of whether the state has a right to force its citizens to serve in the army becomes even more topical presently, when the state, unfortunately, is incapable of offering safe service environment for the citizens. In this context it becomes absolutely clear that the state is fully responsible for the citizens who were drafted.
So, the current legislation in force ignores the individual’s interests, his desire to serve or not to serve in the army, his inclinations, skills, talents and abilities. Therefore, an absolutely positivistic approach can be traced here. As H. S. Skovoroda once wrote, sometimes the people are born inclined neither to marry nor to serve in the military, but to teach others freely wisdom and honor without which no social estate is viable. It means that every individual must chose his/her own way in life with due consideration to one’s inclinations, abilities, convictions and desires, and then follow it, fulfilling all his internal potential for the benefit of the people, society and country.
Legislation provisions concerning the draft of Ukrainian citizens to the army for fixed term date back to the past, i.e. to the times, when our state was the part of the Russian empire, and later, of the Soviet Union. Due to geopolitical situation and bipolarity dividing the world, the Soviet Union, claiming to be the mightiest superpower, pursued rigorous militarization policy, increasing the size of its military organization in order to create the necessary conditions to confront the countries with different ideological platforms and to realize its imperialistic ambitions, though the official soviet stand-point was quite different.
Ukraine, however, after declaring its independence, proclaimed the peace-loving nature of its foreign and domestic policy, which permeates its whole legislation, including article 18 of the Constitution of Ukraine, which reads that foreign political activity of Ukraine is aimed at safeguarding its national interests and security through peaceful and mutually beneficial cooperation with the members of world community in compliance with the universally recognized principles and norms of the international law.
Besides, Ukraine declared its Military Doctrine, which is of exclusively defensive nature, adheres to the principle of non-use of force or threat of force and strives to resolve all the international disputes and conflicts by political means only. The quoted democratic provisions do not undermine the significance of the military organization and all the measures taken by the Ukrainian state to ensure its military security.
With all that in mind, we believe that the state should undertake additional measures for accelerating army reform aimed at the transition to professional army and all military units’ formation exclusively on contractual basis. Presently, the respective decision stipulates transition to the contractual service by the year 2015; however, considering the actual situation and budgetary funding, achieving of this goal seems next to impossible.
CONCLUSIONS AND RECOMMENDATIONS
The issue of servicemen’s rights has remained crucial over the years 2009 and 2010. It is noteworthy that, starting 2010, Ukrainian army is left without any cardinal guidelines. Normative regulations which practically did not change since soviet times present a serious hindrance to the resolving of this problem. The amendments to normative acts regulating this area have been made sporadically and inconsistently, without due consideration to requirements and standards established by the Constitution of Ukraine.
Once the course towards transition to professional army and all military units’ formation exclusively on contractual basis is proclaimed, the very philosophy and concept of the Law of Ukraine “On Military Duty and Military Service” should be revised – the main stress being laid on contractual and not draft-based army service, with ensuring appropriate guarantees which would make it possible. The said Law lacks the clause concerning equal access to military service; it only stipulates the opportunity to sign a contract for the military service (articles 19 and 20).
The Statutes of the Armed Forces of Ukraine must undergo dramatic changes. They should be seriously revised in the sections concerning the protection of servicemen’s rights and freedoms, especially for the soldiers serving a fixed term. Moreover, the whole military legislation should be similarly revised, taking into account basic constitutional principles proclaimed in our country.
Therefore, the following measures can be recommended.
1. Defining cardinal course of development for the state military organization on the legislative level, identifying main guidelines and parameters which need immediate reforming.
2. Doing the utmost to ensure transition to the exclusively contractual basis for military service.
3. Amending Chapter І of the Law of Ukraine “On Military Duty and Military Service” with the respective article which would guarantee Ukrainian citizens the right of equal access to the military service regardless of color, political, religious and other convictions, gender, ethnic and social background, property status or other characteristics
4. Amending article 6 of the Disciplinary Statute of the Armed Forces of Ukraine with provisions clearly regulating the procedure for refusing to obey obviously criminal order, similar to the way it is regulated, e.g. in the Law on Public Service and Disciplinary Statute of the Internal Affairs Agencies.
5. Amending the Statute of Internal Troops and Disciplinary Statute of the Armed Forces of Ukraine with provisions, which would not only exclude any negative consequences for a military unit commander who, as a person in charge of criminal investigation, discovers criminal offence or law violation in his military unit, but also envisage a form of incentive for doing so.
6. Devising new version of Disciplinary Statute of the Armed Forces of Ukraine, based on the principle of illegality of disciplinary violation (the deed is considered a disciplinary violation only in cases directly spelled out in the Disciplinary Statute).
7. Including respective norms clearly spelling out and interpreting basic constitutional principles (equality, respect of human dignity etc.), the adherence to which shall be mandatory for all those joining military service and those in active service into all Statutes of the Armed Forces of Ukraine, Laws “On Military Duty and Military Service”, “On Social and Legal Protection of Servicemen and Members of their Families”.
8. Analyzing and revising Statutes of the Armed Forces of Ukraine in the focus of their compliance to the Constitution of Ukraine; establishing the necessary guarantees for the servicemen, especially those in fixed term service.
Prepared by Yevhen Hryhorenko, senior lecturer of State and Law chair of V.N.Karazin Kharkiv National University.
On Military Duty and Military Service: Law of Ukraine of March 25, 1992 № 2233-ХІІ // Bulletin of the Supreme Rada of Ukraine– 1992. – № 27. – P. 386.
On Defense of Ukraine: Law of Ukraine of December 6, 1991 № 1932-ХІІ // Bulletin of the Supreme Rada of Ukraine – 1992. – № 9. – P. 106.
On Armed Forces of Ukraine”, : Law of Ukraine of December 6, 1991, № 1934-ХІІ // Bulletin of the Supreme Rada of Ukraine. – 1992. – № 9. – P.108.
On Social and Legal Protection of the Servicemen and their Families: Law of Ukraine of December 20, 1991 № 2011 with amendments introduced in compliance with the Law of Ukraine of November 3, 2006. № 328-V // Bulletin of the Supreme Rada of Ukraine. – 2006. – № 51. – p. 519.
On Democratic Civilian Control over the State Military Organization and Law Enforcement Structures: Law of Ukraine of June 19, 2003 № 975-ІV // Bulletin of the Supreme Rada of Ukraine – 2003. – № 46. – P. 366.
White book 2009, Armed Forces of Ukraine. – К. :Ministry of Defense of Ukraine, 2010. – p. 12-13.
Monitoring of the servicemen’s rights violations / Compiled by M.A.Kryukova –Kh.Folio, 2004 – p. 186.
Statute of the Internal Troops of the Armed Forces of Ukraine: approved by the Law of Ukraine of March 24, 1999, № 548-ХІV // Bulletin of the Supreme Rada of Ukraine – 1999. – № 23–24. – p. 194.
Criminal Code of Ukraine: Law of Ukraine of April 5 2001 // Bulletin of the Supreme Rada of Ukraine– 2001. – № 25–26. – P. 131.
On Public Service: Law of Ukraine of December12 2006 № 432-V // Bulletin of the Supreme Rada of Ukraine– 2007. – № 9. – p. 69.
Disciplinary Statute of the Internal Affairs Agencies: approved by the Law of Ukraine of February 22 2006. № 3460-ІV // Bulletin of the Supreme Rada of Ukraine. – 2006. – № 29. – p. 245.
White book 2009, Armed Forces of Ukraine. – К. :Ministry of Defense of Ukraine, 2010 – p. 15.
Statute of the Internal Troops of the Armed Forces of Ukraine: approved by Law of Ukraine of March 24 1999 № 548-ХІV // Bulletin of the Supreme Rada of Ukraine. – 1999. – № 23–24. – p. 194.
Criminal Code of Ukraine: Law of Ukraine of April 5 2001 // Bulletin of the Supreme Rada of Ukraine– 2001. – № 25–26. – P.. 131.
M.I.Karpenko. Criminal liability for the violation of statutory rules concerning relations between the servicemen apart from subordination-based relation (criminal law and criminological research)– M.I.Karpenko / editor V.K.Matviychuk : monograph. – К. : КНТ, 2006. – P. 56.
Ibid – P. 266.
On Military Duty and Military Service: Law of Ukraine of March 25 1992 № 2233-ХІІ // Bulletin of the Supreme Rada of Ukraine – 1992. – № 27. – P. 386.
V.V. Rechytsky. Symbolic reality and the law / V.V. Rechytsky– Lviv :VNTL-Klasyka, 2007. – P. 269-270.
V.Z Gushchyn. Military service as a constitutional duty of the Russian Federation citizens/ V.Z Gushchyn// Pravo i Politika. 2000. – № 12. – P. 67.
H.Skovoroda. Works : in 2 v. / H.Skovoroda – К. : “Vydavnytstvo Oberehy”LTD, 2005. – II ed., amended /Foreword О.Myshanych. – P. 109.
Constitution of Ukraine, adopted at the V session of the Supreme Rada of Ukraine on June 28 1996// Bulletin of the Supreme Rada of Ukraine – 1996. – № 30. – P. 141.
Military Doctrine of Ukraine, approved by the Presidential Decree of June 15, 2004, № 648/2004 // Presidential bulletin. – 2004. – № 14.
Military area is rather multifaceted, that is why trying to resolve the whole range of problems at once will not bring positive results in any segment of the intended reforms.