What is there to know about the new Ukrainian Draft Law No. 8297 on dual...
12 May 2018
The problems with state support of the military survivors have not arisen since the beginning of the ATO in Ukraine, and mass media continually reports about that. In fact the military survivors faced them earlier. A striking example confirms that ̶ illegal annulment of status of a person, who falls within the scope of the Law “On War Veterans’ Status, Their Social Security Guarantees”, for Rivne widows of military servicemen dead as a result of the diseases acquired within the period of military service before sadly remembered events on the East of our country. Only due to the support of Mariia Tsypiashchuk, the lawyer and coordinator of the Public Office of UHHRU in the City of Rivne, justice was restored. Whereof we will relate the facts as they actually happened.
Mercurial Position of Officials
On October 26, 1998 the Ministry of Labour and Social Security of Ukraine on request of the Ministry of Defence of Ukraine forwarded the Letter No. 01-3/1589-05-3 with clarifications of the possibility to award status to a person, who falls within the scope of the Law “On War Veterans’ Status, Their Social Security Guarantees”, members of family of military servicemen, who dead due to the diseases acquired within the period of military service. In particular, it admitted that Clause 1, Article 10 of the abovementioned law covers members of family of dead military servicemen, who acquired diseases within the period of military service, irrespective of their place of service and participation in military operations, if their death is caused by the acquired disease.
Along with that, on November 10, 1998 Main Financial Department of the Ministry of Defence of Ukraine provided clarifications on request of the Ministry of Labour and Social Security of Ukraine and stated that causal connection of the disease acquired within the period of military service with death shall be determined by medical and social assessment institutions, wherefore, military commissariat had to provide assistance against an application of the military survivors. (Letter 3/1589-05-3 dated 26.10.1998). This Letter was also forwarded to Rivne Military Commissariat.
On those grounds of the abovementioned regulatory acts the widows of the military servicemen in Rivne received their certificates and benefits stipulated by legislation for the corresponding category of citizens.
Besides the foregoing regulatory instruments of the higher state authorities, Main Department of Labour and Social Security of Rivne Regional State Administration and Rivne Regional Military Commissariat provided additional proof of eligibility for military survivals’ benefits stipulated by the Law (For instance, the Letter from Rivne Regional Military Commissariat No. 411-ю dated 29.07.2005 and the Letter from Main Department of Labour and Social Security of Rivne Regional State Administration No. 06-Г-672). However, on March 1, 2010 the Ministry of Labour and Social Security of Ukraine inexplicably changed its position. Whereof it was evidenced by new Letter No. 164/0/15-10/014 revoking the Letter No. 3/1589-05-3 dated 26.10.1998.
As a result, during the years 2013-2014 the Decisions of Board considering the issues related to determination of status in accordance with the Law “On war veterans’ status, their social security guarantees” of the Department of Labour and Social Security of Rivne City Executive Committee deprived 126 persons of war veteran’s survivor status. The grounds for such decisions were substantiated, as those citizens didn’t provide (repeatedly) corresponding documentary proof of their dead husbands’ affiliation to the persons specified in Articles 6,7 of the Law.
See what Svitlana Badrazhan, the military serviceman widow tells about that:
– In February, 2014 I applied to the Department of Labour and Social Security of Rivne City Executive Committee with a purpose to receive free travel coupon. This is one of the benefits stipulated for persons with Military Survivor status ̶ 50% of ticket value once a year or 100% – once in 2 years. All the time the Department was dragging out its response, then it started to demand documentary proof of my husband’s participation in military operations, and finally, in May I revealed that the Board deprived me of status. But, in 2005, when I was executing such status, I submitted all necessary documents. I do not understand why I had to do it again, as the Certificate was issued to me for the term of life.
As explained by Mariia Tsypiashchuk, the lawyer and coordinator of the Public Office of UHHRU, the applicable legislation doesn’t stipulate the grounds for revision of such certificates validity, as well as the grounds for their revocation. The Ministry of Labour and Social Security of Ukraine confirmed that in its response dated 14.11.14. However, local Department of Labour and Social Security inexplicably didn’t take into account such circumstance.
Not all the widows, who were deprived of state support, decided to put up with situation. The most active of them ̶ Svitlana Badrazhan filed a suit against such Decision of the Department of Labour and Social Security to Rivne City Court. As far as numerous applications in that regard to Volodymyr Yevgenovych Khomok, the Mayor of the City of Rivne, Vira Mykolaiivna Melnyk, the Head of the Department of Labour and Social Security of Rivne City Executive Committee, as well as statements to police, prosecutor's office, President of Ukraine, Verkhovna Rada of Ukraine and Ombudsmen didn’t bring positive results.
Unfortunately, she lost the case in the court of the first instance. The woman was despaired to restore her right and didn’t file appeal petition, until she applied to the Public Office of UHHRU in the City of Rivne in August, 2014. Then it was decided to achieve justice in the Court.
According to Mariia Tsypiashchuk, the lawyer and coordinator of the Public Office of UHHRU – The first obstacle on this stage was that as of September, 2014 there wasn’t complete text of the Decision on the website of the Unified State Register of Court Decisions of Ukraine. Because in the time of its proclamation the Court having exercised its right stipulated by the Article 160 of Code of Administrative Court Procedure proclaimed only its introductory and resolutive part. Also the Court didn’t have such Decision. At that, according to the legislation the Court had to execute and forward the copy of the Decision to the trial parties within 5 days from the date of case hearing. Only after filing a petition, on my advice, to issue copy of the Court Decision to the presiding judge by Mrs. Badrazhan, the plaintiff, it was executed and mailed to the addressee. Thus, the Decision didn’t take legal effect, which enabled to renew the terms of appeal.
However, even here the complications set in. After Zhytomyr Administrative Court of Appeal had opened appeal proceedings, the case was not passed from Rivne City Court more than a month. At the same time the notification in the form of ordinary letter was sent containing that materials were supposedly sent to Zhytomyr on October 3, 2015. At last, they were actually passed in November, only after the plaintiff had filed several applications, complaints about inactivity of the court employees, and she had personal appointment with the chief of Rivne City Court.
As a result, the court hearing was conducted in Zhytomyr Administrative Court of Appeal as soon as on December 2, 2014 without representatives of the Department of Labour and Social Security, who even didn’t appear there. The appellant was represented by the plaintiff and her representative ̶ Mariia Tsypiashchuk, the lawyer and coordinator of the Public Office of UHHRU in the City of Rivne.
That time the Court admitted claims lawfulness and substantiation of arguments stated in the Appeal Petition and revoked illegal decision of the Board, by which Svitlana Badrazhan was deprived of Military Survivor status. Moreover, after partial satisfaction of claims the Court underlined that it was not necessary to restore such status, as its legal effect didn’t cease. Besides that the Court noted that the Department of Labour and Social Security were not entitled to demand from the citizens to provide repeated proof of their status. Consequently, that local authority violated regulations of the Article 19 of the Ukrainian Constitution binding to act within the terms and on the grounds stipulated by law.
However, the Department of Labour and Social Security filed a cassation appeal. But, on December, 2014 Higher Administrative Court of Ukraine rejected to open cassation proceedings due to “inconsistence of the cassation appeal and its arguments are not sufficient for revision of case materials, as an applicant has not specified the grounds to consider that the Court incorrectly applied regulations of substantive and procedural law”.
Following a Successful Example
On the Saint Nicholas Day ̶ on the 19th of December Svitlana Badrazhan with a help of the lawyer and coordinator of the Public Office of UHHRU filed a petition to the Department of Labour and Social Security concerning enforcement of the Appellate Decision. At the beginning of January, 2015 the Decision was completely enforced. And on December 22, 2014 by the request of 12 widows of dead military servicemen collective petition to the Department of Labour and Social Security and to the Mayor of the city was executed at the Public Office of UHHRU in Rivne with request to take into account position of the Collegiate Court, which clearly admitted that actions of the Department, starting from its requirement to provide initial documents and finishing with its rendered Decision about rejection to recognize them as military survivals, were illegal. In view of opinion of the Court it was offered to revoke the Board Decision, by which the citizens were deprived of Military Survivors status.
However, they responded with refusal substantiating that “the Court Decision dated 02.12.14 concerns only S. D. Badrazhan” and shall not in any way oblige the Department to restore Military Survivors status for other persons. Mariia Tsypiashchuk considers that such responses were not given on merits of the petition, as it didn’t state anything like the Decision of Zhytomyr Administrative Court of Appeal also covers other persons.
It is also known that the Department forwarded an inquiry to the Court, which rendered this Decision, its clarifications. Zhytomyr Administrative Court of Appeal repeatedly evoked the case from Rivne City Court in order to give the response for such inquiry. At that, the Department and the Mayor of the city didn’t deem necessary to wait for response from the Court and solved issues on their own discretion.
̶ Unfortunately neither official position of the Court, nor blandishment, nor logic reasons can persuade the officials to admit their mistake, ̶ Mariia Tsypiashchuk notes. ̶ In this event the Department of Labour and Social Security together with other local authorities and local government authorities seem to be more likely Orwellian Ministries, names of which reflected diametrically opposed matter of their activity. As the phrase goes: we are, where we are, but we continue our work!
At the moment the lawyer of the Public Office of UHHRU in the City of Rivne prepares several collateral suits to restore the rights of citizens, in respect of which public authorities rendered obviously illegal decisions. We hope that the Court will also render positive decisions like in suit of Svitlana Badrazhan.
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