New law on mobilization came into force: questions and answers

Author: Tetiana Bodnia

Although the new mobilization law gives men time to update their records, it does not abolish the service of draft notices or document checks on the streets and in public places. In addition, it increases liability for those liable for military service and their employers. There are also a number of innovations for the military.

How to choose a place of service by speciality

We asked Yuliia Zasoba, a lawyer at the Legal Hundred NGO, and Maria Zviahintseva, the manager of the Legal Hundred's analytical department, to analyse these innovations in more detail.

THERE WILL BE NO DETENTIONS ON THE STREETS?

Starting from 18 May, Ukrainian male citizens aged 18 to 60 must carry:

• an identity document;
• military registration document.

According to part 1 of Article 13 of the Law of Ukraine, identity documents are:

1. a passport of a citizen of Ukraine;
2. a passport of a citizen of Ukraine for travelling abroad;
3. a diplomatic passport of Ukraine;
4. service passport of Ukraine;
5. seafarer's identity card;
6. crew member's identity card;
7. an identity card for returning to Ukraine;
8. temporary certificate of a citizen of Ukraine;
9. driver's licence;
10. a stateless person's identity card for travelling abroad;
11. permanent residence permit;
12. temporary residence permit;
13. migrant card;
14. a refugee certificate;
15. refugee travel document;
16. ID card of a person in need of additional protection;
17. travel document of a person granted additional protection.

At least one of these documents must always be on hand for a man between the ages of 18 and 60 during martial law. In addition to the above, you must also have a military registration document - a military ID card, a temporary certificate of a person liable for military service, a conscription registration certificate (the so-called "military service registration certificate"). The latter document must be carried by conscripts - persons registered with the conscription office. Only such documents are required to be presented by a man at the request of representatives of the TCR and SS (Territorial Centres of Recruitment and Social Support) or a police officer.

You must have such documents with you until the end of martial law.

It is worth noting that the self-updating of data by persons liable for military service in connection with the entry into force of the "mobilisation" law does not cancel the right of representatives of the TCC and SS to serve draft notices. They continue to have such powers.

Instead, the employees of the TCR and SS did not, do not and will not have the right to detain and forcibly take to the TCR and SS.

In this regard, it is important to understand in which cases the detention of a person liable for military service is lawful and by whom it can be carried out. The new Law stipulates that only in case of a citizen's failure to fulfil his/her duties (failure to appear at the TCR and SS upon receipt of a draft notice or a requirement of the Law, failure to undergo a medical examination by a MMC, failure to provide vehicles, buildings, etc. to military formations in accordance with the established procedure with subsequent reimbursement) or in case of a violation of the legislation on defence, mobilisation preparation and mobilisation (Art. 210-1 of the Code of Administrative Offences), the head of the TCR and SS shall apply to the National Police of Ukraine for the detention and taking of such person to the TCR and SS. In other words, it is not the TCR and SS that carry out the detention and taking, but only the officers of the National Police of Ukraine if there are legal grounds for this.

If it is impossible to carry out administrative detention and take the person to the TСR and SS, the head of the TCR and SS sends a written request to fulfil the obligation (such a request is sent by registered mail with acknowledgement of receipt). If the requirement is not fulfilled within 10 calendar days from the date of delivery, the TCR and SS shall apply to the court for a temporary restriction of the right to drive a vehicle during mobilisation for the period until the requirement is fulfilled or withdrawn.

Thus, in no case shall representatives of the TCR and SS have the right to detain and forcibly take persons liable for military service to the TCR and SS.

The filing of such a lawsuit by the head of the TCR and SS with the court does not automatically restrict the right to drive a vehicle. The court considers such a claim comprehensively, examining the circumstances of the case, the citizen may file a response (written objections to the statement of claim) and the court may even refuse to accept such a claim or satisfy its requirements. In particular, it is worth noting that at the initiative of the court or at the request of a party (TCR and SS or a person liable for military service), the court may consider the case in a court hearing, which in turn is one of the guarantees that a person can present himself at court and follow the case.

The court may dismiss such a claim by the TCR and SS if, in fact, there was no failure to fulfil the aforementioned obligations or an offence under Article 210-1 of the Code of Administrative Offences, or the National Police of Ukraine was unable to carry out administrative detention and take the person to the TCR and SS, in cases where the person uses the vehicle due to a disability or dependency of a person with a disability of group I, II, a child with a disability, etc.

Therefore, the filing of a lawsuit by the head of the TCR and SS does not automatically restrict the right to drive a vehicle. In addition, the person may file a statement of objections to the claim (revocation). In case of disagreement with the court's decision, the person is not unconditionally deprived of the right to appeal.

Unfortunately, there are situations of forced detention and taking of persons liable for military service in the TCR and SS. In this case, it is important to contact the National Police of Ukraine, the Ministry of Defence of Ukraine, the Military Law Enforcement Service, and the Ukrainian Parliament Commissioner for Human Rights. Applications can be submitted by both the person liable for military service and their family members.

EMPLOYERS WILL BE RESPONSIBLE FOR THOSE WHO HIDE

There are cases when persons liable for military service involve a lawyer in the process of updating their information. Such actions are not prohibited by the current legislation, and, if necessary, a person liable for military service may use the services of a lawyer to protect his or her rights and interests at any stage of updating information. When representing the interests of his or her client, the advocate shall comply with the provisions of the current legislation.

At the same time, it is important to note that if the draft notice is duly served, the person is obliged to appear to the TCR and SS. Otherwise, such a person may be held liable. In the case of ignoring a draft notice to update data, such a person may be held administratively liable under Article 210-1 of the Code of Administrative Offences, while if the person fails to appear under a military draft notice (which is served after the data has been updated), criminal liability arises under Article 336 of the Criminal Code of Ukraine. In practice, even if a person fails to appear twice under a draft notice to update their data, they are subject to administrative liability. However, if the neglect is systematic, there is a high probability of criminal liability:

• Administrative liability may be imposed in the form of a fine of UAH 3,400-5,100.
• Criminal liability is imprisonment for a term of three to five years.

As Draft Law No. 10379 has already been signed by the President of Ukraine, fines will range from UAH 17,000 to UAH 25,500.

In addition, payment of a fine does not relieve a person from the obligation to appear to the TCR and the SS.

It is worth noting that in case of updating the data in the TCR and SS by persons who are reserved or entitled to deferment, it is illegal to serve them with military calls if such persons have provided all supporting documents that indicate the existence of appropriate grounds exempting them from the draft during mobilisation.

If persons liable for military service fail to appear to the TCR and SS, their employers may also be held liable. In particular, the new Law provides for the employer's obligation to ensure timely notification and arrival of employees involved in the performance of the mobilisation obligation at depots by taking appropriate information, organisational and technical measures. In case of failure to comply with the Law, the employer shall be administratively liable, including under Article 210-1 of the Code of Administrative Offences.

Failure to update military registration data may also be a violation of the rules of military registration after the law comes into force.

On behalf of territorial recruitment and social support centres, heads of territorial recruitment and social support centres have the right to consider cases of administrative offences and impose administrative penalties for such violations.

A person may appeal against the imposed penalty in court.

HOW TO APPEAL THE RESULTS OF THE MMC (Military Medical Commission) AND CHOOSE THE RIGHT PLACE OF SERVICE?

The medical examination by the MMC is an extremely important component of the data update, as it provides information on the health status of persons liable for military service. MMC is the only institution that determines fitness or unfitness for military service. A mere certificate from a healthcare institution, regardless of its form of ownership, is not a document that can indicate fitness or unfitness for military service. At the same time, medical documents should be taken into account when assessing the degree of fitness during the examination by the MMC.

In case of disagreement with the decision of the MMC, a person always has the opportunity to appeal against such a decision. There are two ways to appeal against the decision of the MMC: judicial and out-of-court, but the latter should be used first. To do this, you must file a complaint with an upper MMC. In such a complaint, you need to justify your position as to why the preliminary conclusion contains either inaccurate or incomplete information. To support your words, you should attach certified copies of the medical documents and the conclusion decision of the MMC to which you appeal. In case of disagreement with the results of the appeal, you can appeal to the central MMC, and if the result is unsatisfactory, you can go to court.

If a person is not entitled to a deferment and does not have a conclusion of the Military Medical Commission on his or her unfitness for military service, he or she may be mobilised. And in this case, the question often arises whether there is an opportunity to choose a brigade or speciality. If a person has decided on the position and speciality they would like to serve in, they should apply to military formations with vacancies and get a letter of introduction. To find a vacancy, you can use the information in the TCR and SS, contact an administrative service centre or search on the Internet portals LobbyX, etc. This document should be submitted to the TCR and SS for mobilisation or contractual service in this particular speciality, position and military formation.

You can also choose your place of service at the training centre at the stage of suballocation, but in the speciality you have obtained or have skills in. In this case, the algorithm of actions is absolutely identical: get a letter from the desired military unit and address it to your direct supervisor at the training centre.

In accordance with part 1 of Article 39 of the Law of Ukraine "On Military Duty and Military Service", citizens of Ukraine called up for military service during mobilisation, for a special period, who have not previously served in the Armed Forces of Ukraine or other military formations, undergo a basic general military training course lasting at least one month. However, in practice, the duration of such training is approximately 2 months, and, if necessary, 3 months.

According to Article 59 of the Statute of the Internal Service of the Armed Forces of Ukraine, the commander (chief) is obliged to prevent servicemen who have not completed basic military training or have no combat experience from participating in combat operations. According to the Instruction on the organisation of the implementation of the Regulation on the performance of military service by citizens of Ukraine in the Armed Forces of Ukraine, basic military training is mandatory for persons who have not performed military service.

This means that such training is mandatory for persons who have no experience of service. In case of non-compliance with the above-mentioned provisions of the current legislation, one should contact the higher command, the Ministry of Defence of Ukraine, and the Military Law Enforcement Service.

SHOULD I CLOSE THE INDIVIDUAL ENTREPRENEUR IN CASE OF MOBILIZATION?

Individual Entrepreneurs who have received a call-up or have even been mobilised should not worry. No changes have been made to these categories of persons since 18 May. Persons who were recruited for military service during martial law and mobilisation do not need to close their Individual Entrepreneurs, as the state registration of their business activities is not terminated. Even if a military officer is a military official (i.e., performs organisational, administrative or business duties, such as a commander, etc.), there is no need to close an individual entrepreneur in this case. At the same time, a military official is prohibited from conducting business under an individual proprietorship.

If such a person decides to close an individual entrepreneur, this can be done in a few minutes on the Diia portal at the link.

If a serviceman decides not to close an individual entrepreneur but does not carry out entrepreneurial activity, then no taxes and fees are charged during the mobilisation period.

In particular, he is exempt from paying the single social security tax (if there are no employees) and the unified social tax. To do so, he must submit an application and a copy of his military ID or other document confirming his call-up for service to the relevant tax authority within 10 days after demobilisation.

Such an application can be submitted either in person or through the taxpayer's electronic office.

If a payer of a single social security tax has employees, it may appoint an authorised person to pay salaries and/or other income and liabilities.

From the Editor: Continuing our analysis of the novelties of the law "On Amendments to Certain Legislative Acts of Ukraine on Certain Issues of Military Service, Mobilisation and Military Registration", in the second part we will tell you more about those that directly affect the military. We are talking about the possibility of passing the preliminary military medical commision remotely, financial support during treatment, additional leave, important changes in the issue of dismissal from military service, etc.

Tetiana Bodnia, Censor.NET