Deserters involuntarily: what Ukrainian military personnel undergoing treatment abroad face

Ukrainian military personnel who are undergoing treatment after being wounded abroad find themselves in a rather absurd situation - they can easily be accused of, at a minimum, unauthorized leaving of a military unit or place of service, and, at maximum, desertion. In addition, some of them have already stopped receiving monetary allowances from the state.

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Treatment of wounded Ukrainian military personnel abroad is carried out if the injury is quite serious, in order to at least cure the person, not to mention his return to the ranks of the Armed Forces of Ukraine. This may require some special, high-tech equipment or some unique techniques (for example, in the field of prosthetics).

“A consultation of doctors is being held and a corresponding appeal is being sent to the Ministry of Health. They contact specialized Western medical institutions - public, private, there are a lot of programs: interstate, charitable, and so on. There may be a dozen medical institutions, and the best one is selected – the best according to the profile of a particular injury. At the same time, medical institutions can be anywhere – even in Europe, even in Australia,” he tells Apostrophe. O. chief physician of the Kyiv city clinical hospital No. 10, former military doctor Danilo Mikhailov.

According to him, all costs of transportation and treatment are paid by the receiving party, and this significantly relieves the burden on the Ukrainian healthcare system.

“But of course, the main thing is the health of the military man. In Ukraine, doctors may not be worse, but we do not have such high-quality equipment, and doctors, accordingly, do not have the necessary experience,” says Danilo Mikhailov.

On September 6, 2023, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine on Strengthening the Social Protection of Military Personnel, Police Officers and Other Persons” was adopted. This document was supposed to amend the law “On the social and legal protection of military personnel and members of their families” in war conditions. In particular, the terms for granting leave to a military personnel for treatment due to illness or leave for treatment after injury (concussion, trauma or injury), while maintaining monetary and material support, were clarified.

“The duration of such leave is determined by the nature of the illness, injury, concussion, trauma or injury. At the same time, it is indicated that the total time of continuous stay of a serviceman in healthcare institutions and leave for treatment is at least a week and cannot exceed a total of 4 months in a row. Then - a military medical commission. If a serviceman is sent abroad for treatment, the total time of his stay there for treatment (including the time of movement) cannot exceed 12 months in a row,” medical lawyer, member of the NAAU Medical and Pharmaceutical Law Committee Yulia Mikolaets tells Apostrophe.

Gap in the law

“If for treatment in Ukraine there is a remark that this period does not apply to cases where the law provides for longer periods of stay for treatment, then for treatment abroad there is no such clause. There is no established procedure for passing the Ukrainian IHC abroad, and therefore, in fact, a return to Ukraine is required. Since for military personnel any movement must be formalized according to the appropriate established procedure, permits and documents, failure to arrive on time at the unit or commission can be qualified as unauthorized abandonment of the military unit or place of service, or even as desertion,” says Yulia Mikolaets.

According to Art. 172-11 of the Code of Ukraine on Administrative Offenses, unauthorized abandonment of a military unit, as well as the failure of a serviceman to appear on time for military service without good reason (in case of transfer, failure to appear from a business trip, vacation or from a medical institution) for up to 10 days, entails a fine of 8,500 to 17 thousand hryvnia. Or arrest and detention in a guardhouse for up to 10 days.

In accordance with Art. 407 of the Criminal Code of Ukraine, unauthorized abandonment of a military unit or place of service by a military man, as well as his failure to appear on time for service without good reason, committed in a combat situation, and the same actions lasting more than 3 days, committed under martial law, are punishable by imprisonment for a term of 5 to 10 years.

If unauthorized leaving of a military unit or place of service is carried out for the purpose of evading military service, this may generally be classified as desertion. According to Art. 408 of the Criminal Code of Ukraine is imprisonment for a term of 5 to 12 years.

“I have been receiving treatment in Germany for 1 year and 7 months. And my treatment is not over yet. I submit a monthly certificate from a German hospital that I am still undergoing treatment. This issue is not regulated by law - the units simply do not know what to do with us. Therefore, for now they simply stopped paying the army minimum wage, which is about 20 thousand hryvnia,” Evgeniy Leshan, a lieutenant of the Ukrainian Armed Forces’ defense forces, who only a few months ago got on crutches, tells Apostrophe.

According to him, payments for those who have been abroad for more than 12 months have stopped since October last year - as soon as the law “On Amendments to Certain Legislative Acts of Ukraine on Strengthening the Social Protection of Military Personnel” came into force.

“Whoever is treated in Germany is registered in the German social system and receives appropriate payments - about 450 euros per person per month. Therefore, the termination of Ukrainian payments is not critical, although it is unpleasant,” says Evgeniy Leshan.

As much as needs

It is unknown how many Ukrainian military personnel are undergoing treatment abroad. Statistics may be kept, but they are closed, like the number of military personnel killed. But, as doctors say, this is no more than 5% of all wounded.

“Even foreigners fighting for Ukraine are preferred to be treated on the spot. We had three wards in Bila Tserkva: 15 people - from Nepal, Brazil, and somewhere else,” Vyacheslav Konovalov, senior lieutenant of the Armed Forces of Ukraine, tells Apostrophe. Who this week was forced, without completing his treatment, to return to the Odessa region to undergo military training: four months have passed and unauthorized abandonment of the unit may be charged. On the other side of the scale is the possible amputation of the foot.

“Since the duration of treatment and rehabilitation of a serviceman abroad can objectively be more than 12 months in a row, the legislative norm requires improvement. At a minimum, adding a clause - that this period does not apply in cases where the law provides for longer periods of stay for treatment,” says medical lawyer Yulia Mikolaets.

For now, in the event of termination of monetary payments, these actions can be appealed in accordance with the procedure established by law. However, doing this will be quite problematic.

“First of all, it is necessary to send requests through the consulate to the Ministry of Defense and to your military unit, to establish exactly what the situation is. If so, sue. In principle, the consulate is obliged to help. It is generally obliged to help its citizens abroad and provide consular support on all issues. However, as practice shows, volunteers actually do everything during treatment. If you go to court, then by general power of attorney, in Ukraine. But it’s generally difficult for me to imagine that a person who has been undergoing treatment for more than a year will sue. In such a situation, it’s not easy for a healthy person to go against the state machine,” Natalka Kostyshyn, former director of the Center for Free Secondary Legal Aid, tells Apostrophe.

In her opinion, the most realistic thing is to wait until the state itself admits its mistake and corrects the situation. Certain steps are being taken in this direction.

An interdepartmental working group has already been created, consisting of specialists from the command of the Medical Forces of the Armed Forces of Ukraine, the Ministry of Defense, the Ministry of Health and the Ministry of Digital Development, to work out the issue of introducing changes to regulations to implement the possibility of conducting a remote military medical examination of military personnel who have been undergoing treatment abroad for more than 12 months . That is, if anything happens, the military man will have a legal opportunity to continue treatment abroad.

“Yes, such a change would be fair, since life and health are the greatest social value in our state, enshrined in the Constitution of Ukraine,” says Yulia Mikolaets. But when this change will be prepared and introduced is completely unclear. Our priority now is mobilization...

“You need to be treated until you recover. How much time it takes, that’s how much time is needed,” sums up military medic, guitarist of the group “Vopli Vidoplyasova” Evgeniy Rogachevsky in a conversation with “Apostrophe”.