A serviceman was removed from the unit's lists only a year after his death: does the family have the right to payments — the Supreme Court's position

The Supreme Court, sitting as the Administrative Cassation Chamber, considered a dispute between the widow of a deceased serviceman and the military unit regarding the right to receive monetary allowance and additional remuneration provided by Cabinet of Ministers Resolution No. 168 for the period after the serviceman's death until the moment of his removal from the personnel lists. The Court also expressed its position on the relationship between the legal regimes of a serviceman's death, missing status, and removal from the military unit's personnel lists.

Case summary

The plaintiff applied to the court after the military unit refused to pay her the monetary allowance and additional remuneration of her husband for the period from April 1, 2022, to July 17, 2023.

The plaintiff's husband served under mobilization in the marine infantry. During a combat encounter in Donetsk region, he sustained fatal injuries. Due to the combat situation, the serviceman's body could not be evacuated. Subsequently, the military unit conducted an official investigation, which resulted in an act confirming his death. Later, the wife received official notification of her husband's death and filed a claim to establish the fact of death.

The district court established the fact of the serviceman's death on the day he died. Based on this decision, the civil registry office issued a death certificate. At the same time, the order to remove the serviceman from the personnel lists was issued only a significant time after his death.

The plaintiff argued that since the court decision establishing the fact of death was made only in March 2023, and the serviceman was removed from the personnel lists in July 2023, the military unit should have continued to accrue monetary allowance and additional remuneration until that date. Therefore, she requested to recognize the refusal to pay such funds as unlawful and to oblige the military unit to amend the order regarding the payment period.

Decisions of previous courts

The Mykolaiv District Administrative Court dismissed the claim. The court concluded that there were no grounds for accruing monetary allowance after the serviceman's death, as he was not considered a missing person.

The Fifth Administrative Court of Appeal partially satisfied the claim. The appellate court held that until the act confirming death was drawn up, the military unit should have accrued monetary allowance and additional remuneration. Accordingly, the court recognized the refusal to pay for the period from April 1, 2022, to July 1, 2022, as unlawful and obliged the military unit to amend the payment order. The rest of the claims were dismissed.

Disagreeing with this decision, the plaintiff filed a cassation appeal, insisting that payments should be made until the fact of death is established by court decision or until the serviceman is removed from the personnel lists.

Legal position of the Supreme Court

The Supreme Court emphasized that the legislation distinguishes different legal regimes: death or demise of a serviceman, missing status, declaration of a person as deceased, establishment of the fact of death at a certain time, state registration of death, and personnel removal from the military unit's lists.

The Court noted the need to differentiate the legal regime of payment of due but unpaid monetary allowance in case of death from the mechanism of payment to family members of a serviceman who is captive, interned, or missing. In case of established death, family members receive only the monetary allowance to which the serviceman was entitled up to the date of death. In contrast, Procedure No. 884 applies only in cases of captivity, internment, or missing status.

The Supreme Court pointed out that at the time of dispute consideration, there was already a court decision establishing the fact of the serviceman's death on the day of his demise. Based on this decision, the death was registered by the state and a death certificate was issued. Therefore, the administrative court dealt not with uncertainty about the serviceman's fate but with a legally established fact of death.

The Court stressed that information about the serviceman was not entered into the Unified Register of Persons Missing under Special Circumstances, and the legality of this omission was not subject to consideration in this case. Under these conditions, retrospective application of the missing status regime to the disputed period is impossible.

The Supreme Court also noted that the date of issuance of the order removing the serviceman from the personnel lists has only a personnel-accounting character and does not affect the date of death, does not extend military service after death, and does not create an independent basis for accruing monetary allowance after death.

Similarly, the date of drawing up the act confirming death cannot independently determine the period for which payments are made. If a court decision establishes a specific date of death, this legal fact is decisive for resolving the dispute.

In case No. 400/14430/23, the Supreme Court concluded that after establishing the fact of death on the day of demise, there are no legal grounds for accruing and paying monetary allowance and additional remuneration for the period after that date as for a person with missing status.

At the same time, the Supreme Court noted that legislation on persons missing under special circumstances should generally be applied as a guarantee to protect the rights of servicemen's families when death is not established and the person's fate remains unknown. However, in this case, such guarantees cannot be applied retrospectively after the court establishes the fact of death on a specific date.

Considering the limits of cassation review, the Supreme Court dismissed the cassation appeal and left the decision of the Fifth Administrative Court of Appeal unchanged.

The ruling takes legal effect from the date of its adoption, is final, and not subject to appeal.

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