Establishment of Participation in Military Activity Shall Be Performed in Extra-Judicial Procedure – SC GC

Plaintiff applied to court with a claim on establishing the participation in military activity within voluntary commands referring to the fact that he had applied to the Ministry of Defense of Ukraine requesting to provide him with the status of combatant during the Anti-Terrorist Operation; however, he had received a reply, pursuant to which he had not been included into the list of such combatants.

Courts of first and appeal instances had satisfied the plaintiff’s demands and the Ministry of Defense of Ukraine submitted a cassation appeal noting that these demands should not be satisfied in the procedure of civil judicial proceedings, thus, the proceedings in this case should be closed. Nevertheless, in the appealer’s opinion, the refusal of relevant body to establish the noted fact may be appealed in a court within administrative judicial proceedings.

Besides, the Ministry stated that the procedure of establishing the fact of a person’s participation in military activity, including while holding the Anti-Terrorist Operation on the East of Ukraine, was provided in the Procedure for granting the status of combatant to persons defending independence, sovereignty and territorial integrity of Ukraine and directly engaged in the Anti-Terrorist Operation, provided operational support, approved with the Resolution of the Cabinet of Ministers of Ukraine No. 413 of 20 August 2014.

Taking into account the fact, that the plaintiff does not appeal the decision, activity or inactivity of bodies authorized the adopt decisions on granting the status of combatant, the Grand Chamber of the Supreme Court concluded that the case did not have the features of public and legal dispute.

While solving the dispute, the SC Grand Chamber noted that the establishment of a person’s participation in the Anti-Terrorist Operation was a component of process of granting him\her with the status of combatant and should be performed in extra-judicial ,but not in judicial, procedure. The noted issue shall be referred to the authority of specially authorized bodies (commissions, inter-institutional commissions). The application of a person pretending to get the status of combatant shall be considered by these commissions, and in case of refusal to grant the relevant status the person has right to apply to court to appeal the commission’s decision, including as for the failure to establish the participation in military activity.

Taking into account the abovementioned, the Grand Chamber of the Supreme Court concluded that the noted dispute should not be considered within civil judicial proceedings; however, it should be considered in extra-judicial procedure pursuant to legally established procedure. Hence, the judgments of courts of first and appeal instances were cancelled, and the proceeding in the case was closed.

Follow the link, to see the full text of the Resolution of the Grand Chamber of the Supreme Court of 3 July 2019 in the case No. 233/2929/17 (proceedings No. 14-284цс19) http://reyestr.court.gov.ua/Review/82998173.