General mobilization continues in Ukraine, which was announced due to the full-scale invasion of Russia. All men liable for military service must undergo a military medical commission to determine their fitness for service. Sometimes men disagree with the decision of the IHC.
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Lawyer Andrei Karpenko explained what prospects there are for appealing the IHC decision. He first noted that professional medical questions should be asked to doctors, not lawyers.
In accordance with the Regulations on military medical examination in the Armed Forces of Ukraine, approved by order of the Minister of Defense dated August 14, 2008 No. 402, military medical examination determines the health suitability of conscripts, military personnel and those liable for military service for military service.
Resolutions of the Military Military Commission are adopted from the list of diseases, conditions and physical disabilities that determine the degree of fitness for military service, explanations for the use of articles in the schedule of diseases and tables of additional requirements for health status.
Even if the disease of a person liable for military service is on the list, the degree of impairment of body functions can only be determined by a medical specialist during a personal examination and comparison of the condition with the requirements of the explanation.
The available medical documents of the Military Military Commission are taken into account, but they are not decisive when deciding on suitability for military service.
Doctors who are included in the military medical commission from healthcare institutions of municipal or state ownership, during a medical examination, get acquainted with medical records in the ESOH and other medical documents provided by the person liable for military service, characterizing his state of health, and also enter into the ESOH the corresponding medical records from information received.
During a medical examination, a person liable for military service is obliged to provide members of the Military Military Commission of the TCC and SP with a medical record of an outpatient patient in the form No. 025/o, approved by Order of the Ministry of Health of Ukraine dated February 14, 2012 No. 110 “On approval of forms of primary accounting documentation and completion used in health care institutions regardless of the form of ownership and subordination”, registered with the Ministry of Justice of Ukraine on April 28, 2012 under No. 661/20974 (hereinafter referred to as form No. 025/o), extracts from medical documentation regarding past diseases, injuries received, wounds, etc., if such information is not available in the ESOP.
The resolution of the Military Military Commission of the district, city TCC and joint venture on the degree of suitability of a person liable for military service upon conscription during mobilization, for a special period, is issued by a certificate of the Military Military Commission (Appendix 4 to these Regulations) in two copies, which is valid for a year from the date of the medical examination. The resolution of the Military Military Commission of district, city TCC and joint ventures on temporary unsuitability or unsuitability of military service with exclusion from military registration is subject to approval by the regular Military Military Commission. A copy of the certificate is issued to the person who has undergone a medical examination.
If it is difficult for doctors of the IHC TCC and SP to finally determine the state of health of a person liable for military service, he is sent by a doctor – a member of the IHC for an outpatient or inpatient examination, followed by an examination of the IHC TCC and SP, with an appropriate record of the referral being made to the ESOH. If the examination was carried out in a healthcare institution in the system of the Ministry of Defense of Ukraine, the examination is carried out by the hospital (garrison) IHC. In controversial and complex cases, the right to make a final decision remains with the CVCC.
The TCC and SP sends to the regional staff military military commission, on the territory of which the applicant lives, his application, medical documents that the applicant has or received by the military commissariat from health care institutions (institutions), and a military ID.
How to appeal a decision of the IHC
The lawyer noted that if a person does not agree with the decision of the IHC, he has the right to appeal.
There are two ways to appeal the decisions of military registration and enlistment office employees: through the judiciary or administratively (at the military registration and enlistment office itself).
Complaints to the regular IHCs are submitted within the time period specified by the Law of Ukraine “On Citizens’ Appeals”.
Complaints about actions (inaction) or decisions of non-staff VVK are submitted to regular VVK in accordance with the administrative-territorial zones of responsibility given in Appendix 2 to the order of the Ministry of Defense of Ukraine dated November 16, 2016 No. 608 “On approval of the administrative-territorial zones of responsibility of establishments of the Armed Forces of Ukraine for organization of medical support.”
Complaints about actions (inaction) or decisions of the IHC of district (city) TCC and joint ventures are filed according to the subordination of the IHC of the Kiev city TCC and joint venture, Sevastopol city TCC and joint venture, regional TCC and joint venture, TCC and joint venture of the Autonomous Republic of Crimea.
Actions (inaction), decisions, resolutions adopted by the IHC of regional (Kyiv city, Sevastopol city) TCCs and joint ventures, TCC and joint ventures of the Autonomous Republic of Crimea are appealed to the regular IHCs.
Actions (inactions) and decisions made based on the results of consideration of appeals from the regional IHC are appealed to the Central IHC.
If the staff IHC recognizes the application or complaint about the revision (cancellation) of the IHC decision as justified, the staff IHC revises the appealed IHC decision or makes a decision to send for a repeat (control) medical examination.
As for the judicial appeal of the VLK, according to the lawyer, studying judicial practice, it becomes clear that the courts of administrative justice very carefully consider this category of cases, in no hurry to satisfy the claims of military personnel and those liable for military service. In almost every judicial decision of an appeal or district administrative court one can see the following legal position.
When considering the merits of disputes in cases of appealing decisions of the IHC, the court has the right to verify the legality of the conclusion of the IHC only within the framework of compliance with the procedure for adopting this conclusion. However, the court cannot carry out its own assessment of the falsity of a certain conclusion, since the courts are not specialized institutions in the medical field and therefore the assessment of the falsity of the IHC conclusion is beyond the scope of the necessary research in the context of the application of substantive law.
When considering a case, the court does not have the right to make its own assessment as to whether there are grounds for declaring the plaintiff fit or unfit for military service.
The Ministry of Health, together with law enforcement agencies, will check the conclusions of the military medical commissions (MMC) issued after the start of the full-scale invasion. Let us remind you what the IHC and MSEC are and what decisions they make.
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