The Supreme Court has clarified when military personnel may be punished without an investigation

The “Judicial and Legal Gazette” has published an overview of Supreme Court rulings concerning disciplinary liability in the armed forces, internal investigations and procedural time limits when appealing against orders issued by the command.

One of the Supreme Court’s key findings concerns the fact that an internal investigation is not a mandatory prerequisite for dismissing a military serviceman from his post, placing him on standby, and suspending his pay, where there is an obvious and documented violation.

The Administrative Court of Cassation within the Supreme Court reached this conclusion on 13 June 2024 in case No. 420/9472/23. The court upheld the decisions of the lower courts, which had dismissed the military personnel’s claim seeking to have the orders for her dismissal from post, placement on standby and cessation of financial allowances for the period from 7 May to 10 August 2022 declared unlawful.

The claimant argued that during the temporary occupation of Kherson she had continued to perform her military duties in good faith, but her payments had been suspended from May 2022. She challenged the orders of the military unit commander, which were based on a breach of sub-paragraph 14 of paragraph 116 of the Regulations on Military Service in the Armed Forces of Ukraine, namely, prolonged absence from the place of deployment for more than 10 days without valid reasons.

The Supreme Court upheld the lawfulness of the command’s actions. The court noted that ordering an internal investigation in such a situation is a discretionary power of the commander, rather than a mandatory prerequisite for a disciplinary decision. If the violation is obvious and requires no further clarification, a separate investigation is not necessary.

In this case, the court established that the claimant had been absent for more than 10 days from the military unit’s new deployment location in territory controlled by Ukraine. It was for this reason that the Supreme Court recognised the dismissal from post, placement on standby and cessation of pay as lawful.

At the same time, the court made a clear distinction between disciplinary and criminal liability. The review emphasises that, for disciplinary liability, where there are obvious and documented violations, the command is not obliged to order an internal investigation. However, for the suspension of military service due to desertion or absence without leave, the mere fact of absence is insufficient, as the presence or absence of signs of a criminal offence must be established during an official investigation.

Another conclusion of the Supreme Court concerns the legal nature of the findings of an official investigation. In Case No. 813/2250/17, which the Administrative Chamber of the Supreme Court considered on 31 March 2021, a serviceman challenged two disciplinary sanctions – a warning regarding incomplete professional compliance and a reprimand. He claimed that the service investigation had been conducted by unauthorised persons with gross violations, and that its findings were incomplete and biased.

The courts of first and appeal instance partially upheld the claim. The Supreme Court dismissed the cassation appeal of the border guard detachment and emphasised: the conclusion of the official investigation is not in itself a decision by an authority that gives rise to direct legal consequences for the individual.

The court noted that such a conclusion is an official document which records the fact that an investigation was conducted, contains evidential information and provides a general description of the violations identified. An official investigation does not, in itself, entail disciplinary consequences. Legal consequences arise from the order imposing disciplinary action, and it is this order that is subject to challenge in court.

Separately, the Supreme Court emphasised that, in order to hold a person liable, it is necessary to prove the very fact of the violation, the military personnel’s guilt, the degree of guilt, as well as the causes and conditions that contributed to the offence.

Another legal position concerns the explanations given by a service member during an official investigation. In Case No. 815/1062/17 of 5 July 2021, the Supreme Court concluded that the explanations of the person subject to the internal investigation are an essential element of an objective clarification of the circumstances, and their disregard or improper assessment may render the disciplinary penalty unlawful.

In this case, a military serviceman challenged his unit commander’s order imposing a disciplinary penalty for improper performance of official duties. He claimed that the internal investigation had been conducted with significant violations, in particular without due consideration of his explanations. The courts of first and appeal instance partially upheld the claim, and the Supreme Court left these decisions unchanged.

The court noted that, in accordance with the Instructions on the Procedure for Conducting Internal Investigations in the Armed Forces of Ukraine, a serviceman has a guaranteed right to provide oral and written explanations, as well as to submit statements and documents. Those conducting the investigation are obliged to properly assess such explanations and, in the event of their rejection, to state the grounds in the relevant inspection report.

If, however, the commander merely notes the fact of failure to fulfil the plan but does not assess the serviceman’s explanations and does not establish a causal link, the disciplinary penalty may be deemed unfounded.

A separate set of rulings concerns the commander’s liability for the actions of subordinates. In Case No. 420/15045/21 of 13 July 2023, the Administrative Court of the Supreme Court upheld the lawfulness of imposing a disciplinary penalty on the commander of a military unit for failing to properly train subordinates who committed acts constituting a criminal offence.

The claimant, as the unit commander, challenged the order imposing disciplinary action for breaches of Articles 4 and 59 of the Disciplinary Statute of the Armed Forces of Ukraine. He argued that he could not have prevented his subordinates from committing the offence because he was not present at the time it was committed, and also pointed out that just over three months in the post was insufficient to exert a meaningful educational influence.

The court of first instance upheld the claim, but the court of appeal overturned this decision and dismissed the claim. The Supreme Court left the decision of the court of appeal unchanged.

The court noted that Article 58 of the Internal Service Regulations of the Armed Forces of Ukraine and Article 5 of the Disciplinary Regulations of the Armed Forces of Ukraine impose on the commander personal responsibility to the state for the training of subordinate military personnel and their observance of military discipline. The commander’s responsibility for the actions of subordinates, as stated by the Supreme Court, may be expressed, in particular, in disciplinary liability for offences committed by subordinates.

The Supreme Court rejected the argument regarding the short duration of the commander’s tenure. The ruling emphasises that the commander’s responsibility is permanent and does not depend on the length of service.

Another important point concerns the time limits for bringing a case to court. In Case No. 320/1855/21 of 16 December 2021, the Administrative Court of the Supreme Court concluded that the submission of complaints to the unit commander, senior officers, the commander of the Armed Forces, the Commander of the Ukrainian Armed Forces Land Forces, the General Staff or law enforcement agencies does not constitute pre-trial settlement of an administrative dispute within the meaning of Part 4 of Article 122 of the Code of Administrative Procedure of Ukraine.

In this case, the serviceman challenged an order on the results of an internal investigation into the demobilisation of a battalion – specifically regarding the imposition of financial damages upon him and holding him fully financially liable. The courts of first and appeal instance dismissed the claim without consideration due to the expiry of the time limits for bringing the action and the absence of grounds for their restoration.

In his cassation appeal, the claimant argued that the limitation period for the claim was six months, as he had attempted to resolve the dispute through pre-litigation procedures by appealing to the unit commander, senior officers, the commander of the troops, the Commander of the Land Forces of the Armed Forces of Ukraine, the General Staff of the Armed Forces of Ukraine, and by repeatedly submitting complaints and requests.

The Supreme Court did not agree with this approach. The court stated that the right to lodge complaints under the Disciplinary Statute of the Armed Forces of Ukraine and the pre-litigation settlement of an administrative dispute are mechanisms that differ in purpose, legal nature and consequences, and cannot be equated.

Consequently, the court concluded that lodging complaints with the command or the General Staff does not suspend or restart the six-month time limit for bringing a case before an administrative court. If there has been no pre-trial settlement, this time limit is calculated from the date on which the person became aware, or ought to have become aware, of the violation of their right.

As a reminder, the Kyiv Territorial Military Command has denied reports of increased mobilisation