Appealing against the decision of the MSEC for the military: legal aspects and procedure

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Publication date: 25.07.2024

Appealing against the decision of the MSEC for the military: legal aspects and procedure

The Medical and Social Expert Commission (MSEC) plays a key role in determining the degree of disability and health status of servicemen and women who are entitled to social benefits, pensions and other types of assistance. The decisions of the MSEC can have a significant impact on the lives of servicemen and women, including the payment of disability pensions, compensation payments and other social guarantees. However, the decision of the MSEC is not always objective or corresponds to the real state of health of the serviceman, which may be the basis for appealing it. In this article, we will consider the main aspects of appealing against the decision of the military's MSEC, including the legal framework, the procedure for filing a complaint, the rights of servicemen, and the court practice in such cases.

Legal framework

The main legal acts regulating the activities of the MSEC and the procedure for appealing its decisions in Ukraine for military personnel are:

• The Law of Ukraine "On Social and Legal Protection of Servicemen and Members of Their Families": Establishes social and legal guarantees for servicemen and women, including the right to medical and social expertise and social benefits.
• Resolution of the Cabinet of Ministers of Ukraine "On Approval of the Regulation on the Procedure, Conditions and Criteria for Establishing Disability": Defines the procedure for conducting medical and social expertise, the criteria for establishing disability, and the rights and obligations of the MSEC.
• Civil Procedure Code of Ukraine: Defines the procedure for judicial appeal against the decisions of the MSEC.
• Administrative Procedure Code of Ukraine: Defines the procedure for appealing decisions of state bodies, including the MSEC, in administrative proceedings.

Grounds for appealing against the decision of the MSEC

Servicemen and women may appeal against the decision of the MSEC on various grounds, including:

1. Incorrect determination of the degree of disability: If a serviceman believes that the MSEC has incorrectly determined the degree of his disability or has not taken into account all the circumstances of his health condition.
2. Inconsistency of the decision with medical documents: If the decision of the MSEC does not correspond to the data of medical documents, examination results or other evidence confirming the state of health of the serviceman.
3. Violation of the procedure: If there were violations of the procedure during the medical and social examination, such as the absence of necessary specialists, violation of the rights of the serviceman, etc.
4. Non-compliance with the rights of the serviceman: If the MSEC did not take into account the rights of the serviceman, did not provide him with the opportunity to submit additional evidence, or did not provide proper conditions for the examination.

Procedure for appealing against the decision of the MSEC

Appeals against the decision of the MSEC for servicemen can be made both administratively and in court. Let's consider each of these options:

1. Filing a complaint with the higher commission of the MSEC: A serviceman or his representative may file a complaint with a higher MSEC. The complaint must set out the grounds for appeal, arguments and evidence supporting the applicant's position. The complaint is submitted to the higher MSEC, which considers it within a certain period of time and makes a decision.
2. Re-examination: The higher MSEC may order a second medical and social examination to clarify the state of health of the serviceman. The serviceman has the right to be present during the examination and to submit additional evidence.
3. Decision-making by the higher MSEC: After reviewing the complaint and conducting the examination, the higher MSEC makes a decision that may confirm or change the previous decision. The decision of the higher MSEC can also be appealed in court.

Judicial appeal procedure:

1. Filing a lawsuit in court: A serviceman can file a lawsuit with an administrative court demanding that the decision of the MSEC be cancelled or declared invalid. The lawsuit is filed at the place of residence of the serviceman or at the location of the MSEC.
2. Consideration of the case in court: The court considers the case, hears the serviceman, representatives of the MSEC, witnesses, experts and other interested parties. 
3. The court may request additional evidence, order an expert examination and other procedural actions.
4. Decision-making by the court: After hearing the case, the court makes a decision, which may overturn or uphold the decision of the MSEC. The court decision can be appealed.

Rights of servicemen when appealing against the decision of the MSEC

Servicemen and women who appeal against the decision of the MSEC have a number of rights that guarantee fairness and objectivity in the consideration of their cases:

1. The right to information: Servicemen and women have the right to receive full information about the results of the medical and social examination, the grounds for the decision, as well as the appeal procedure.
2. The right to a lawyer: Servicemen and women have the right to legal assistance, including representation at the MSEC and in court. A lawyer can help prepare a complaint, collect evidence and represent the interests of the serviceman.
3. The right to submit evidence: Servicemen and women have the right to submit additional medical documents, examination results, expert opinions and other evidence confirming their health condition.
4. The right to participate in the proceedings: Servicemen and women have the right to be present during the consideration of their case by the MSEC or court, to submit explanations and ask questions.
5. The right to appeal the decision: Servicemen and women have the right to appeal against the decision of the MSEC to a higher authority or to a court if they consider it unfair or unreasonable.

Court practice

The court practice in cases of appealing against decisions of the Military Medical Expert Commission for servicemen shows real cases of resolving disputes on establishing disability and determining the degree of ability to work. 

Here are some examples of court cases:

1. The case of appealing against a decision to refuse to establish disability: A serviceman appealed against the decision of the MSEC, which refused to establish disability, despite the availability of medical documents confirming a serious health condition. The court, having considered all the evidence and heard experts, ruled in favour of the serviceman and ordered the MSEC to reconsider its decision.
2. A case of appealing the degree of disability: The serviceman appealed against the decision of the MSEC, which determined his disability to be lower than the one provided for in the medical documents. The court, having considered all the evidence and heard witnesses, decided to increase the degree of disability.
3. A case of violation of the examination procedure: A serviceman appealed against the decision of the MSEC due to violations of the examination procedure, including the lack of proper specialists in the commission. The court found that the violation of the procedure affected the results of the examination and ordered the MSEC to re-examine him.