After Returning from Captivity, a Soldier Was Denied Payments Due to Alleged Unauthorized Departure from the Unit: What the Court Decided

The Third Administrative Court of Appeal has affirmed that the initiation of criminal proceedings under Part 4 of Article 402 of the Criminal Code of Ukraine (failure to execute an order) does not, in itself, constitute a legally prescribed ground for suspending military service or, consequently, for terminating the payment of monetary allowance. The law stipulates such consequences only for specific categories of criminal offences, namely unauthorised departure from a military unit, desertion, or voluntary surrender to captivity.

Case Circumstances

A sergeant in the Armed Forces of Ukraine, who had been serving since 2004, was expected to report to his unit's new location following its evacuation from Melitopol after the full-scale invasion began. The military unit alleged that he failed to comply with the relocation order and did not leave Melitopol, despite having the opportunity to do so.

Conversely, the serviceman stated that during the evacuation, he was left without transport due to the actions of another serviceman who was supposed to take him out. He claimed to have repeatedly attempted to reach the military unit's new location independently but was captured on 21 April 2022 and remained in captivity until 3 January 2024.

On 6 March 2022, criminal proceedings were initiated under Part 4 of Article 402 of the Criminal Code of Ukraine for failure to execute an order. Subsequently, by order of the unit commander, the plaintiff's military service was suspended, and the payment of monetary and other allowances was stopped. After his military service resumed in February 2025, he submitted a report requesting the calculation and payment of the due monetary allowance for the suspension period but was denied. The military unit justified this by stating that it had previously excluded him from all types of allowances as a serviceman who had unauthorisedly left the military unit.

Following this, the serviceman applied to the administrative court.

What the Courts Decided

The Zaporizhzhia District Administrative Court partially upheld the claim. The court ruled that the military unit's inaction regarding the non-accrual and non-payment of the serviceman's monetary allowance and additional remuneration for the period from 6 March 2022 to 1 March 2025 was unlawful. It ordered the unit to perform the appropriate calculations and payments in accordance with Cabinet of Ministers Resolution No. 884 and the Procedure for Payment of Monetary Allowance, approved by Ministry of Defence Order No. 260. The remaining part of the claim was denied.

Disagreeing with this decision, the military unit filed an appeal, insisting on a complete denial of the claim. Concurrently, the serviceman requested an amendment to the decision, specifically to recognise the refusal to pay the monetary allowance as unlawful and to apply the consequences that, in his opinion, should arise from the unjustified suspension of military service.

Conclusions of the Appellate Court

The Third Administrative Court of Appeal concurred with the conclusions of the court of first instance.

The panel of judges noted that the Law "On Military Duty and Military Service" and the Regulations on the Military Service of Citizens of Ukraine in the Armed Forces of Ukraine define exhaustive grounds for suspending military service. Such a decision can be made if information regarding the serviceman related to unauthorised departure from the military unit or place of service, desertion, or voluntary surrender to captivity is entered into the Unified Register of Pre-Trial Investigations. Only in such cases does the law provide for the termination of the contract, payment of monetary allowance, and other types of support.

However, in case No. 280/5679/25, the criminal proceedings were opened under Part 4 of Article 402 of the Criminal Code of Ukraine — for failure to execute an order. The appellate court noted that the case materials did not contain evidence of a pre-trial investigation under Part 4 of Article 408 of the Criminal Code of Ukraine regarding desertion, nor did the military unit provide such evidence.

Under these circumstances, the court concluded that the initiation of a pre-trial investigation under Article 402 of the Criminal Code of Ukraine is not, in itself, a legally prescribed ground for suspending military service. Therefore, the panel agreed with the first instance court's conclusion that the military unit unlawfully failed to accrue or pay the serviceman the due monetary allowance and additional remuneration for the disputed period.

At the same time, the appellate court agreed with the method of protection chosen by the court of first instance. The panel noted that the administrative court cannot substitute the authority and make decisions on its behalf. Therefore, the proper method of protection in this case is to recognise the military unit's inaction as unlawful and to impose on it the obligation to calculate and pay the due amounts, rather than satisfying other claims of the plaintiff.

As a result, the Third Administrative Court of Appeal dismissed the appeals of both the military unit and the serviceman and upheld the decision of the Zaporizhzhia District Administrative Court. The appellate court's ruling came into legal force on the day it was made.

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