General mobilization has continued since the full-scale russian invasion of Ukraine, along with martial law. What are the legal features of this period, who and where can issue summonses to conscripts, and who is not subject to mobilization - all this was said by legal advisers OPORA on June 8 during the traditional broadcast on Wednesdays OPORA.Live.
"According to the legislative definition, mobilization is a set of measures carried out with the aim of a gradual, systematic transfer of the economy, the activities of the authorities, the Armed Forces of Ukraine, and other military formations to certain states of wartime. If we distance ourselves from casuistry a little, the term "mobilization" is often used as a certain period of wartime activities," Bohdan Mokhonchuk, OPORA's legal adviser, said.
On the day of the full-scale russian invasion on February 24, 2022, a general mobilization was announced in Ukraine, together with the imposition of martial law by a Presidential Decree approved by the Verkhovna Rada of Ukraine. Accordingly, both the martial law and the general mobilization have been extended until August 23 this year.
According to the lawyer, there is another concept in the legislation, which is a "special period". It is a broader category. A special period includes mobilization, wartime, and partially a reconstruction period after the end of hostilities. A special period may be introduced in three cases: 1) from the moment of the decision about the mobilization; 2) from the moment of imposition of martial law; 3) when information on covert mobilization is provided to the competent authorities. "It is important for us that these first two points have been fulfilled. In fact, we can say that in addition to the period of mobilization, there is also a so-called special period," Bohdan Mokhonchuk said.
In addition, according to the lawyer, the Presidential Decree, which provides for conscription, was changed and did not occur in the spring. It is unknown how things will develop further, but the conscription campaign is currently expected in October-December this year. "As for the differences, the conscript military service is intended primarily for the acquisition of military accounting specialty, the acquisition of relevant practical skills, abilities. Simply put, it is for training purposes. If we talk about conscription during mobilization or during the special period, it is carried out primarily to ensure defense capabilities and meet the needs of the Armed Forces of Ukraine, including their replenishment," Bohdan Mokhonchuk said.
"The Decree of the President of Ukraine has announced a general mobilization throughout Ukraine. Neither the Presidential Decree nor other legislation provides for such a concept as waves of mobilization. In fact, there is one wave of mobilization with different periods, with different intensities of mobilization - in some periods, fewer people are mobilized, in other periods more, in some periods, no one is mobilized at all. That is, such mobilization takes place depending on the needs of the Armed Forces in the replenishment of certain specific military units. The order of mobilization of conscripts and reservists and the involvement of vehicles to meet the needs of the Armed Forces or other military formations are in the amounts determined by the mobilization plans. This mobilization plan is accordingly approved by the General Staff. Of course, these plans are classified," Pavlo Romaniuk, OPORA's legal adviser, said. However, according to him, the practice of several rounds of mobilization existed in the legal field of Ukraine. This was the case during the announced partial mobilization in 2014. For example, in 2015, there were three waves of mobilization for 210 days.
According to the lawyer, two categories of citizens can be mobilized for military service during mobilization: 1) reservists; 2) conscripts who are in reserve and are not booked in the manner prescribed by law for the period of mobilization. When we talk about reservists, they are people who have signed a contract and, accordingly, serve in the military reserve of the Armed Forces of Ukraine or other military formations and are designed to be recruited in peacetime and in special periods, the lawyer explains. Conscripts are persons who are in the reserve of the Armed Forces or other military formations. They are enlisted, respectively, in accordance with the following two grounds: 1) fitness for military service in peacetime or wartime; 2) have not yet reached the age limit in reserve, which is generally 60 years, and 65 years for senior officers. Conscripts can be of the first and second categories. It depends on whether a person has served in the military or acquired a military accounting specialty during it. Conscripts are on the military register in the relevant territorial recruitment centers. The identity documents of such conscripts are, respectively, a military ID or a temporary military ID.
"As a general rule, applicable in peacetime and to some extent now, each conscript must be on the military register at the place of residence. In the event of a change of residence, the conscript must register in the military at the new place of residence. However, during martial law, there is a special rule that prohibits a change of residence without the permission of the relevant official specified by law. In particular, he is the head of the territorial center of recruitment and social support, or in some cases, this may be the commander of the relevant military and not an only military unit," Pavlo Romaniuk said.
According to the lawyer, the implementation of such a procedure can be somewhat difficult for internally displaced persons. In practice, to obtain the status of IDP, conscripts must register for military service at the territorial recruitment center. However, in order to be registered in the new place of residence and deregistered in the previous place of residence, it is necessary to obtain a permit from the relevant official. The legislation does not clearly define such a registration procedure for IDPs. Temporary military registration without deregistration at the main place of residence is also not clearly provided by law, although it is possible that it may exist practically, the lawyer said.
Notification of citizens is carried out, as a general rule, on the basis of documents issued by the heads of territorial centers of recruitment and social support. There are three such documents: orders, summons, and mobilization orders. Bohdan Mokhonchuk notes the forms of orders and summonses are approved by Government Resolution 21921 of December 7, 2016. Despite the Law on Mobilization mentioning mobilization orders and the possibility of notifying citizens, there is no approved form. "If we analyze the court decisions, as well as refer to the Presidential Decree, which approved the forms of the military ID, we can conclude that in practice, such an order is handed to a person after they have arrived at the relevant recruitment center and if they have been declared fit for military service. They look like as such an inset, and their issuance is recorded in the military ticket, there must also be information about enrollment in the team and the need to appear on a certain day and time for recruitment of the military units," Bohdan Mokhonchuk said.
According to the Decree, they were instructed to ensure and organize in the prescribed manner the timely notification and arrival of citizens who are called up for military service during mobilization. According to the law, mobilization is generally carried out by the heads of territorial recruitment centers on the basis of orders, summonses, and mobilization orders. There is also the possibility of summoning by heads of the bodies in which persons are on the military register. However, it applies to certain categories of conscripts and reservists, such as the Security Service of Ukraine, the Foreign Intelligence Service of Ukraine, and others. However, the form of the summons is not established in the legislation.
"If we talk about the general procedure of notification, it's logical that the relevant documents can be handed over by representatives of territorial recruitment centers. However, the procedure for organizing and maintaining military records approved by the Government Resolution contains another algorithm. Initially, the territorial center of recruitment and social support prepares the so-called orders, the form of which is approved in the relevant Resolution. They are, in fact, the list of citizens to be called up. These orders are then passed on to the executive bodies of the village, settlement, city councils, heads of state bodies, enterprises, institutions, and organizations, which carry out further notification. In the case of, for example, the absence of conscripts at their place of residence, the summons may also be brought to the attention of the owners of the houses in which they live. It is possible that this presupposes that homeowners are making further notifications. In addition, when we talk about the heads of state bodies, enterprises, institutions, and organizations, after receiving such an order, they issue an order to notify the relevant conscripts. And also, they bring to their notice that they must arrive on call to the corresponding territorial center of staffing. Such notification documents must indicate the date, time, and place of arrival. Proof of receiving a summons by a citizen is his handwritten signature on the summons form. But again, the Constitution of Ukraine provides for the obligation to defend the Fatherland to protect Ukraine. Therefore, a citizen, in fact, has no right to refuse to sign the summons, of course, provided that it was handed over by an authorized person," Pavlo Romaniuk said.
The law does not say anything about the list of places where summonses can be handed. Given this, according to the lawyer, the practice is that the summons is handed in different places.
And the policy of the authorities that inform citizens about the performance of military duty is carried out in such a way that today, we hear about cases of notification at checkpoints or other places of mass gathering. However, the lawyer says it's still worth remembering a few rules of notification: 1) mandatory notification is carried out by authorized persons; 2) as a rule, people are notified through the summons and only in some cases for a certain category of persons by call-up; 3) the summons can be done exclusively in writing on the appropriate form; 4) the document must indicate the date, time, and place where you need to arrive.
Lawyer Bohdan Mokhonchuk also notes that the list of categories of persons who are not subject to conscription during mobilization is quite wide. It is specified in Article 23 of the Law of Ukraine, "On Mobilization Training and Mobilization". The law also stipulates that the list may be expanded by other relevant Laws. It should be noted that citizens who fall into certain categories have the right to defer conscription only if they meet certain conditions within this category.
As an illustrative example, the lawyer provides the following consolidated list of categories of citizens who cannot be called up for mobilization:
1) persons who have been booked by the authorities, enterprises, institutions, and organizations in accordance with the booking procedure in the Government Resolution;
2) persons with disabilities;
3) persons who are unfit according to the conclusion of the military-medical commission;
4) women and men who take care of 3 or more children, provided that they have not reached 18 years of age;
5) women and men who independently raise a child under the age of 18 or who have an adult child with a disability of group I or II;
6) people's deputies and deputies of the Verkhovna Rada of the Autonomous Republic of Crimea;
7) employees of some authorities, but this list of authorities is exhaustive (for example, police, tax, NABU, DBR, etc.);
8) students, assistant trainees, graduate students, and doctoral students, but under the condition of the full-time or dual form of education;
9) scientific and scientific-pedagogical staff working in institutions of higher or professional higher education, persons working in scientific institutions and having a scientific title or degree, pedagogical staff of secondary education institutions provided they work full time or not less than 75% of the full-time working hours;
10) persons whose close relatives went missing or died during the anti-terrorist operation. They can be mobilized, but with their consent. Otherwise, they are entitled to deferment.