SBU Colonel Removed from the Lists During Sick Leave: How the Supreme Court Protected His Rights

The Supreme Court, composed of judges of the Cassation Administrative Court, considered the case regarding the legality of removing a colonel of the Security Service of Ukraine from the personnel lists during his treatment period.

The dispute concerned the appeal against the order of the Ukrainian Scientific Research Institute of Special Equipment and Forensic Examinations of the SBU about removing the colonel from the personnel lists, as well as the issue of the proper way to protect the violated right in case of such removal.

Case Summary

The courts established that by the order of the Head of the Security Service of Ukraine dated November 21, 2019, the serviceman was assigned to the disposal of the director of the Ukrainian Scientific Research Institute of Special Equipment and Forensic Examinations of the SBU as a leading research associate. Subsequently, by the order of the Head of the SBU dated August 13, 2020, he was discharged from military service into the reserve due to staff reductions or organizational measures. The date of discharge was determined as the day of removal from the personnel lists.

Based on the report of the institute's deputy director, by the order dated September 8, 2020, the serviceman was removed from the personnel lists as of the same date.

At the same time, according to the sick leave certificate, the serviceman was undergoing outpatient treatment from September 8 to September 28, 2020, inclusive.

In October 2020, he applied to the court, considering the order of removal from the personnel lists unlawful, as it was issued during his treatment, which contradicts the requirements of the legislation on military service. The plaintiff also referred to the violation of the right to military service and to receive proper monetary allowance.

Decisions of the Courts of First and Appeal Instances

The Ternopil District Administrative Court concluded that the order to remove the serviceman from the personnel lists was issued during his treatment, which contradicts part three of Article 24 of the Law of Ukraine "On Military Duty and Military Service" and paragraph 66 of the Regulations on Military Service of SBU Servicemen.

The court of first instance recognized the order as unlawful and canceled it, reinstated the plaintiff in the personnel lists and monetary allowance of the institute, and also recovered average monetary allowance for the period of forced absence.

The Sixth Administrative Court of Appeal agreed with the conclusion about the illegality of the order and the need to reinstate in the personnel lists. However, the appellate court changed the decision regarding the amount of payments and recovered in favor of the plaintiff the average earnings for the period of forced absence from September 9, 2020, to May 5, 2025, amounting to UAH 1,054,068.

Legal Conclusions of the Supreme Court

The Supreme Court in case No. 640/27112/20 noted that employees of the Security Service of Ukraine serve in the military, and therefore guarantees established by the legislation on military duty and military service apply to them.

The court emphasized that according to part three of Article 24 of the Law of Ukraine "On Military Duty and Military Service" and paragraph 66 of the Regulations on Military Service of SBU Servicemen, a serviceman cannot be removed from the personnel lists during treatment. Therefore, removal from the personnel lists before the end of the temporary incapacity period contradicts the law.

Since at the time of issuing the order to remove from the personnel lists the serviceman was undergoing treatment, the Supreme Court agreed with the conclusions of the lower courts regarding the unlawfulness of such an order.

However, the Supreme Court did not agree with the method of protection chosen by the lower courts.

The court emphasized that the order of discharge from military service and the order of removal from the personnel lists are different in their legal nature. The discharge order determines the grounds for termination of service, while the removal order is procedural and only records the date of termination of military service.

At the same time, the order of the Head of the SBU on the discharge of the serviceman remained valid and was not subject to consideration in this case. Therefore, the dispute concerned exclusively the legality of determining the date of removal from the personnel lists.

The Supreme Court referred to the legal position of the Grand Chamber of the Supreme Court, according to which in cases of violation of guarantees regarding dismissal during temporary incapacity, the proper remedy is to change the dismissal date to the first day after the end of the incapacity period, rather than reinstatement at work or service.

Given that the grounds for discharge from military service were lawful and not disputed, the plaintiff's rights violation could be remedied by changing the date of removal from the personnel lists from September 8, 2020, to September 29, 2020 — the first day after the end of treatment.

The Supreme Court also noted that the plaintiff did not claim reinstatement in the personnel lists or recovery of average earnings for the period of forced absence. Under such circumstances, the conclusions of the lower courts regarding reinstatement and payment recovery did not comply with the law.

As a result, the Supreme Court partially satisfied the cassation appeal, canceled the decisions of the lower courts in part of the satisfied claims, and adopted a new decision changing the date of removal of the serviceman from the personnel lists from September 8, 2020, to September 29, 2020. In other respects, the court decisions remain unchanged.

The ruling comes into legal force from the date of its adoption, is final, and is not subject to appeal.

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