A serviceman may be deprived of additional remuneration provided for the period of martial law only in case of committing a criminal offence, a military administrative offence or an administrative offence related to corruption - SC

A serviceman may be deprived of the additional monthly allowance paid for the period of martial law if he commits an administrative offence related to military service, but not for an administrative offence for which liability is established by the Code of Ukraine on Administrative Offences.

The Administrative Cassation Court of the Supreme Court reached the conclusion in a case brought by a serviceman who was challenging the actions of a military unit to deprive him of his monthly additional remuneration for March and April 2022.

In accordance with the circumstances of the case, on the basis of reports of an administrative offence under part 2 of Article 173-2 of the Code of Ukraine on Administrative Offences (domestic violence), the commander of the military unit ordered not to pay the plaintiff additional remuneration for the period of martial law in the amount of UAH 30 thousand for March and April 2022. The plaintiff considers such actions of the defendant to be unlawful.

In upholding the claims, the court of appeal reasoned that since the plaintiff was held liable in the form of a fine for committing an administrative offence under part 2 of Article 173-2 of the Code of Ukraine on Administrative Offences, and not for violating military discipline or committing a military offence subject to administrative liability, the deprivation of the plaintiff's right to remuneration was unlawful and violated the plaintiff's statutory right to an adequate salary during martial law.

The SC Administrative Cassation Court partially upheld the cassation appeal, modifying and rephrasing the reasoning of the court of appeal's decision.

Para. 1 of the Resolution of the Cabinet of Ministers of Ukraine of 28 February 2022 No. 168 "On Certain Payments to Servicemen, Ranks and Commanders, Police Officers and Their Families During Martial Law" establishes, in particular, that for the period of martial law, servicemen of the Armed Forces are paid an additional remuneration of UAH 30 thousand per month (except for conscripts), and those of them who are directly involved in hostilities or ensure the implementation of measures for national security and defence, repulsion and deterrence of armed aggression, being directly in the areas during the period of implementation of these measures (including conscripts), the amount of this additional remuneration is increased to UAH 100 thousand per month in proportion to the time of participation in such actions and measures.

At the same time, the issue of non-payment of additional remuneration to a serviceman in connection with the commission of an administrative offence that is the subject of disputed legal relations is not regulated by CMU Resolution No. 168.

At the time when the disputed legal relations arose, the issue of not including in the orders the payment of additional remuneration to servicemen in case of other actions (inaction) which have the characteristics of an administrative or criminal offence - for the month in which such an offence was committed - was settled only by the decision of the Minister of Defence of Ukraine, communicated by telegram No. 248/1298 of 25 March 2022.

According to para. 10 of this decision, the order of payment of additional remuneration in the amount of UAH 100 thousand or UAH 30 thousand does not include, in particular, servicemen in case of committing other actions (inaction), which show signs of an administrative or criminal offence - for the month in which such offence was committed.

The SC Administrative Cassation Court concluded that the remuneration of servicemen provided for by CMU Resolution No. 168 is related to the performance of military service duties and, therefore, the non-payment of additional allowance as a component of remuneration should be related to the performance/non-performance of military service duties by servicemen and not outside the scope of their performance.

Therefore, para. 10 of the said decision of the Minister of Defence of Ukraine, which provides for the condition of non-inclusion in orders on payment of additional remuneration of servicemen in case of committing other actions (inaction) which have characteristics of an administrative or criminal offence, and in the context of disputed legal relations - non-payment of additional remuneration in case of committing actions which have characteristics of an administrative offence, should be linked to military service.

A serviceman may be denied additional remuneration if he commits an administrative offence related to military service, rather than an administrative offence for which liability is established by Article 173-2 of the Code of Ukraine on Administrative Offences.

Since the plaintiff was held liable in the form of a fine for committing an administrative offence under part 2 of Article 173-2 of the Code of Ukraine on Administrative Offences, i.e. on general grounds, and not for committing a military administrative offence, he cannot be deprived of the right to additional remuneration in this case.

In these circumstances, the court of appeal correctly concluded that the deprivation of the plaintiff's right to remuneration for March and April 2022 was unlawful and violated the legal right to an adequate salary (financial support) during the period of martial law.

The Resolution of the Supreme Court of 20 March 2024 in case No. 560/7178/22 (administrative proceedings No. K/990/14602/23) - https://reyestr.court.gov.ua/Review/117799546.

This and other legal positions of the Supreme Court can be found in the Database of Legal Positions of the Supreme Court - https://lpd.court.gov.ua.