In the new law on mobilization, which will come into force on May 16, a rule has appeared that was not in the original version of the bill: decisions of medical and social expert commissions (MSEC) regarding the determination of disability groups II and III for men after February 24, 2022 will be rechecked. How will this norm be implemented?
I was disabled and became...
It is interesting that bill No. 10449 “On amendments to certain legislative acts of Ukraine on certain issues of military service, mobilization and military registration” in its original version established that men with disabilities of all groups are exempt from military service. Actually, this is how it remained in the end, but there are nuances, which are discussed below.
After the first reading (4269 amendments were made to the document), the following provision appeared in the bill. Male Ukrainian citizens aged 25 to 55 years, who were diagnosed with group II and III disability after February 24, 2022, are required to re-pass the military medical commission (MMC) for suitability for military service by the end of 2024.
The idea is, in principle, correct. After all, quite a lot of men who were quite healthy before the full-scale war with Russia suddenly became disabled after the declaration of martial law. And, accordingly, unsuitable for mobilization. And this is somehow suspicious.
“There will be no violation of the rights of people with disabilities. But personally, I think this: if a person bought himself the status of a disabled person in order to avoid mobilization, this should be corrected,” Fyodor Venislavsky, a member of the parliamentary committee on national security, defense and intelligence, tells Apostrophe.
But this provision regarding the repeated IHC did not reach the second and final reading of bill No. 10449. More precisely, it has arrived, but in a slightly modified form. Now it has been decided to check the decisions of MSEC.
“The adopted law on mobilization provides for the instruction of the Cabinet of Ministers, together with law enforcement agencies, to check the validity of MSEC decisions on establishing disability for male citizens aged 25 to 55 years, who were first diagnosed with disability of groups II and III after February 24, 2022. Except for those who have been diagnosed with disability as a result of diseases and injuries received during the defense of Ukraine, as well as the absence of a limb, one of the paired organs, or the presence of cancer. In a word, because of obvious health problems,” Natalka Kostyshyn, the former director of the Center for Free Secondary Legal Aid, tells Apostrophe.
In her opinion, the updated norm is designed to reduce the burden on the Military Military Commission: after all, those who received disability according to the decision of the MSEC are definitely fewer than those who were simply declared unfit for military service. Now the Cabinet of Ministers must instruct the Ministry of Health to make amendments to the relevant Regulations regulating the activities of MSEC, and law enforcement agencies will become involved when unlawful decisions of MSEC are identified. Ideally, it should be like this, but how it will actually be is still unknown.
“Ideally, this is an examination of existing medical documents, and, if necessary, an in-depth medical examination on the profile of the disease,” suggests Natalka Kostishin.
According to Fyodor Venislavsky, several hundred thousand people may be rechecked - those who received disability after February 24, 2022.
“But how many of them will turn out to be “fake” disabled people - here, of course, nothing can be predicted,” the people’s deputy clarified.
Plus, identifying “fake” disabled people also reduces the burden on the budget. After all, in addition to disability status, a person also receives a pension. And if suddenly the disabled person turns out to be healthy, then the Pension Fund, through the court, will be able to demand the return of the money that the “fake” disabled person received.
Conflict norm
But it should be noted that as of today, the adopted law on mobilization comes into conflict (in this case, in the field of passing commissions) with other existing legal norms.
“Neither the Regulations on MSEC, nor the Regulations on the procedure, conditions and criteria for establishing disability, nor the Regulations on military medical examination in the Armed Forces of Ukraine provide such a basis for reviewing disability as its receipt after February 24, 2022. Organizing such a review is possible only after making changes to a number of regulatory documents. Including from the point of view of the need to determine the order and consequences of such a review. For example, how will the status of a person with a disability be cancelled, how will the results of the review be appealed,” medical lawyer, member of the National AAU Medical and Pharmaceutical Law Committee Yulia Mikolaets tells Apostrophe.
According to her, the new norm directly conflicts with existing by-laws. In particular, with the resolution of the Cabinet of Ministers No. 390 of March 30, 2022. It explicitly states that a re-inspection is carried out after martial law is lifted. But will this inspection be considered a repeat inspection? Here, a lot depends on what procedure will be prescribed by the Ministry of Health.
“At the same time, you need to understand that if there is a decision from MSEC - permanent disability, then it has legal force. But the law does not have retroactive force. In order to reconsider such a decision of the commission, a very compelling reason is needed. For example, a request from law enforcement agencies related to the initiation of a criminal case,” says “Apostrophe” and. O. chief physician of the Kyiv City Clinical Hospital No. 10, former military surgeon Danila Mikhailov.
In general, we are waiting for changes in the legislative acts regulating the activities of MSEC.
Is the shop for “disabled people” closing?
And another question - what will happen to those who do not want to take the MSEC again? The law says nothing about this.
“For example, at the military registration and enlistment office, after a person liable for military service has passed the commission, there is a mark. Lists will be raised, after which, if necessary, new summonses will be sent. If a person ignores them, does not appear and re-pass the commission, this is already an offense. With all the ensuing consequences,” suggests the head of the Kyiv City Clinical Hospital No. 10 Danila Mikhailov.
In addition, people who have registered as disabled may be deprived of financial assistance.
“There were cases when the payment of pensions was suspended due to the fact that people did not re-pass the medical and social expert commission,” says Natalka Kostyshyn.
In a word, despite the fact that the bill to strengthen mobilization was submitted, finalized and improved over many months, they could not bring it to fruition. At least in the field of re-commission of persons with disabilities of groups II and III.
There is another interesting point. As a rule, the composition of the MSEC, which determines disability, remains unchanged. And it is quite difficult to imagine that the commission, which two years ago made a verdict on disability, will now cancel it. This is actually to sign that they are either unsuitable for their profession or take bribes. But in this regard, a way out is provided.
“I see the inspection procedure as follows: higher commissions check lower ones. Relatively speaking, the regional ones check the district ones. Documents are checked, if any suspicions arise, then law enforcement officials are involved. All this must be spelled out in the relevant resolutions of the Cabinet of Ministers. But I would like to note that already now, during the implementation of the RNBO decision of August 30, 2023, inspections of the work of the MSEC and the IHC are being carried out with the involvement of police officers and employees of the DBR - as part of investigations into the illegal enrichment of officials of a number of TCCs,” says Fedor Venislavsky.
But the situation, however, can be improved. After all, it is possible that some higher-level MSECs may be no worse corrupt than lower-level ones.
“For the scheme to work properly, new commissions are needed, which would include well-known doctors who have authority in the medical community and value their reputation, as well as specialists from health departments. They would be able to make a decision - who makes sense to revise the previously made decision, and who does not,” sums up Danila Mikhailov.
