IS A CITIZEN SUBJECT TO MILITARY SERVICE IF HE WAS REMOVED FROM RESERVE PERSONNEL REGISTER?

Viktor ZALIZNIUK, сounsel, attorney

Nowadays the focused public attention is given to the initiative of the General Staff of Armed Forces of Ukraine, which prohibits persons, being subject to military service, from leaving their places of residences during war-time without a permission of the Head of the local center of personnel reserve and social support.

However, the status of “a person being subject to military service” is important not only in the context of the right to change a place of residence. Affiliation of the person with specific group of people not always automatically means availability for such person of respective rights.

In particular, the Article 23 of the Law of Ukraine “On Mobilization Trainings and Mobilization” sets forth the list of persons not to be called into military service during mobilization, but it doesn’t mean that they are not subject to military service. Hence, such persons are not automatically granted with the right to move abroad.

In this view, the issue on whether or not the person’s removal from military register means the loss of the status of “person being subject to military service” is on the table.

Thus, the Article 37 of the Law of Ukraine “On Military Duty and Military Service” determines the exhaustive list of citizens to be removed from the military service register, in particular, the citizens, who:

1. have been called or accepted for military service (i.e. members of armed forces);
2. are serving or attending to higher military schools/ academies or to reserve-officer training departments of higher education institutions (such persons are also deemed to be members of armed forces);
3. were recognized as unfit to military service by the military physical evaluation boards and to be excluded from respective register;
4. have attained the maximum age to be accounted as reserve officers;
5. have terminated Ukrainian citizenship;
6. were convicted of grievous or enormous crimes and sentenced to imprisonment;
7. were imprisoned or sentenced to compulsory medical treatment; and
8. are dead or were recognized as missing or declared dead.

It appears to be quite logical, that removal from personnel reserve register leads to the loss of status of “person being subject to military service”. Moreover, the law foresees the difference between the term “to temporarily take off register” and the term “to finally remove from register”.

At the same time, the definition of “person being subject to military service” does not refer to “person registered as reserve personnel”. According to the definition, the criterium of affiliation with “persons being subject to military service” is “to be in reserve”, but not “to be registered in reserve personnel register”.

Thus, the persons being subject to military service means persons being in personnel reserve of Armed Forces of Ukraine and other military units for the specific period of time, as well as to be involved in works to fulfil state defense purposes.

The citizens are to be included to personnel reserve of Armed Forces of Ukraine and other military units conditioned that they fit to serve from the point of health conditions. They are to be registered by the local centers of reserve personnel and social support and by other authorized bodies of other military units.

Fulfilment of military duty implies adherence to rules and procedures of military registration, undergoing of military trainings to in order improve and maintain knowledge and skills needed to fulfil military duty during the specific period of time.

Therefore, registration and adherence to rules and procedures of military registration is a feature of being in reserve.

Consequently, in fact, removal from military personnel reserve register is the same as exclusion from reserve itself.

Ultimately, citizens removed from the register are not to be considered as being subject to military service, and they have the right to depart abroad respectively.