New law on mobilisation: questions and answers. PART 2

Author: Tetiana Bodnia

The people who have been defending the country for more than two years were expecting at least clear rules on demobilisation, rotations and leave from the new law on mobilisation. Unfortunately, it does not mention demobilisation at all. However, the MPs did provide for some changes regarding the grounds for dismissal from service.

Read the first part of the article here.

In addition, this document also provides for additional leave, as well as a number of other innovations related to social protection. Yulia Zasoba, a lawyer at the "Yurydychna Sotnia" NGO, and Maria Zvyahintseva, manager of the "Yurydychna Sotnia" analytical department, analysed the innovations for Censor.NET in more detail.

THE MMC WAS ALLOWED TO BE HELD REMOTELY

Since the status of limited fitness is being cancelled, according to the amendments to the legislation that came into force on 4 May, servicemen with this status must also update their medical data, i.e. undergo a military medical examination. They can be declared temporarily or completely unfit for military service, or unfit with exclusion from the register, or vice versa - fit for certain positions and types of military service. In any case, health restrictions may be grounds for transfer or dismissal of a serviceman. In order to update the status of limited fitness, a person has nine months, i.e., it must be done by the beginning of February 2025.

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 of appealing against the decision of the MMC: judicial and extrajudicial, i.e. to a higher-level MMC. All complaints, whether in court or out of court, must be supported by a package of documents related to the health status, incomplete or biased conclusion of the contested MMC.

At the same time, we would like to note that the amendments to the Law, which have been in force since 18 May, retain the concept of limited fitness in the context of paying such persons an additional remuneration of UAH 20100. That is, if a serviceman is declared to be of limited fitness, this remuneration is retained until the moment of review and transfer, if necessary.

Another important novelty of the law is the possibility to undergo a remote medical examination abroad. In case of treatment or rehabilitation of a serviceman abroad and the need to undergo a medical examination to decide on long-term treatment, the examination is now conducted remotely. Previously, such a possibility was not defined by law, which led to numerous problems with payments and the continuation of necessary treatment.

The new law on mobilisation provides for the retention of financial support for the entire period of continuous treatment in healthcare facilities (although there is no interpretation of such continuity in the law, which may potentially lead to gaps in its application) and medical leave for servicemen who are placed out of state due to the need for long-term treatment.

The law also refers to the payment of documented travel expenses, meals and other personal needs, including per diem expenses in connection with a business trip. This possibility existed at the subordinate level, but its legislative consolidation could potentially have an effective impact on the protection of the rights of military personnel, in particular those on long-term business trips.

WHO CAN BE DISMISSED FROM THE SERVICE

Another novelty of the law is additional leave for destroying enemy equipment for up to 15 calendar days. In such cases, an additional monetary reward is also provided for, which is now enshrined in law from the bylaw level.

More specifically, annual basic leave may be granted in instalments during the calendar year in the following cases:

- the main continuous part will be at least 15 calendar days;

- no more than 30% of the total number of servicemen of a certain category of the relevant unit are absent at the same time.

Under the new law, servicemen released from captivity will also be able to receive additional leave with pay for 90 calendar days without division into parts, if they do not wish to resign from service.

It should be noted that under the legislation in force before 18 May, there were no such guarantees for servicemen released from captivity - neither in terms of additional paid leave nor dismissal (unless, of course, such persons were declared unfit for military service by the Military Qualification Commission after captivity).

At the same time, the law contains a number of important changes regarding dismissal from military service. In particular, family reasons for dismissal of servicemen are now the same regardless of the type of military service, whether it is contractual, mobilisation, personnel, etc. At the same time, the list of grounds for dismissal from military service has been expanded. For example, until 18 May, it was not possible to discharge due to release from captivity, disability of a serviceman, or the maintenance by a serviceman of an adult child with a disability of group I or II, and previously, adoptive parents, foster parents, guardians who depend on an orphan or orphans, a child or children deprived of parental care, and others could not be discharged. Also, starting from 18 May, contract servicemen will be able to discharge from service due to the expiration of the contract concluded during martial law. It is important that the contract was concluded during the martial law period and that its term has expired.

A number of grounds have been amended and clarified. For example, until 18 May, servicewomen or servicemen had the right to choose to be dismissed if they were serving and had a child under 18, but from now on, only servicewomen are entitled to be dismissed in this case.

Previously, servicemen could also be discharged due to the independent upbringing of a child, which in practice caused problems with how to interpret independent upbringing and in what situations it was possible to discharge from military service on the same grounds. The new law clarified this provision in such a way that servicemen who have a child under 18 years of age, if the other parent of the child (children) has died, been deprived of parental rights, declared missing or missing without a trace, or declared dead, serve their sentence in a penitentiary.

In addition, from now on, servicemen will be able to be dismissed in connection with the upbringing of a child with a disability under the age of 18 only if there are no other persons who are obliged to raise him or her. Such a clarification on the absence of other persons was absent in the legislation in force before 18 May.

The grounds for dismissal due to the disability of a family member or the need to care for them have also changed. Previously, mobilised persons could be discharged due to the disability of their spouse, but this provision has now changed significantly. Firstly, dismissal is possible in case of the need to care for a wife of disability group I or II. This means that the need for care must be confirmed, which was not the case before. If the wife has a group III disability, dismissal is possible only if she needs care and the disability is established as a result of cancer, the absence of limbs (limb), hands (hand), feet (foot), one of the paired organs or a group III disability is established regardless of the disease or injury, but in addition to the disability, the wife also has cancer, mental disorder, cerebral palsy or other paralytic syndromes.

This ground for dismissal can be used by both mobilised and contract employees.

As for the dismissal due to the fact that one's father or mother or the father or mother of one's spouse has a disability, such dismissal is currently possible only if the father or mother needs constant care and has a disability group I or II, and if they have no parents, husband/wife, children, siblings, grandparents, grandchildren who can take care of them, or even if there are such persons, they themselves need constant care, which will be confirmed by a certificate from a medical advisory or medical and social expert commission.

Until 18 May, servicemen who were guardians of incapacitated persons with disabilities were eligible for dismissal, but now servicemen who are guardians of incapacitated persons (regardless of the fact that they have a disability) will be eligible for dismissal, provided that no one else is taking care of such persons.

The new law retains the possibility of dismissal if a husband, wife, son, daughter, father, mother or full brother or sister was killed or went missing during the ATO, OOC or martial law. Thus, half-siblings will not be able to be discharged from military service in the event of such a situation.

HOUSING ON CREDIT AND A CAR CERTIFICATE

The law also provides for a number of mortgage lending guarantees: upon signing their first contract, servicemen will be entitled to compensation of 50% of the down payment on a residential mortgage loan, an additional UAH 100,000 after the first year of military service, and another UAH 100,000 after the second year. In addition, contract servicemen will receive certificates for the purchase of a vehicle in the amount of UAH 150,000, which can be obtained within three months from the date of the contract.

Despite all these additional guarantees of social protection, the military are still waiting for an answer to the main question: when they will be able to return home. But it is unknown when MPs will respond to it.

Tetiana Bodnia, Censor.NET