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Publication date: 30.04.2024
active and purposeful military lawyer with more than 4 years of experience
Violation of the rules of accounting for conscripts at the enterprise: responsibility of the manager, fines for business
After the beginning of the full-scale invasion of the Russian Federation on the territory of Ukraine, the issue of keeping records of conscripts at the enterprise became extremely urgent. As of today, despite the fact that active hostilities have been going on for more than a year and a half, in practice there are many questions and disputes between employers and territorial recruitment and social support centers (hereinafter referred to as TCC and SP) regarding military accounting. At the same time, responsibility for violating the rules of accounting for conscripts at the enterprise is also increasing, which is relevant for business.
Military accounting rules for business
First of all, we will consider the main issues related to keeping records of conscripts.
Guided by the provisions of the Law of Ukraine dated March 25, 1992 No. 2232-XII "On Military Duty and Military Service" (hereinafter - Law No. 2232), we will talk about the obligation of enterprises to keep personal records of conscripts, conscripts and reservists.
It should be noted that this obligation does not apply to natural persons — entrepreneurs and natural persons engaged in independent professional activity, because:
• Law No. 2232 does not contain regulations stating that natural persons — entrepreneurs or natural persons engaged in independent professional activity — are obliged to keep military records.Such persons are not enterprises in the sense of the current legislation;
• in accordance with the Resolution of the Cabinet of Ministers of Ukraine dated December 30, 2022 No. 1487 "On approval of the Procedure for the organization and maintenance of military records of conscripts, conscripts and reservists" (hereinafter - Procedure No. 1487), there is no obligation to maintain military records by natural persons- entrepreneurs or individuals engaged in independent professional activity.
This is also confirmed by judicial practice, for example, the decision of the Bobrynetsky District Court of the Kirovohrad Region dated July 20, 2023 in case No. 383/1142/.
Conventionally, the duties of enterprises included in military (personnel) accounting can be divided into the following groups:
• verifiable (mostly arise during the hiring of citizens to check the availability of military registration documents and check lists of personal military records with entries in their documents);
• informative (submission to the relevant bodies: TCC and SP, SBU, divisions of the Foreign Intelligence Service) information about the change employee registration data, their documents, as well as reports on persons who violate the rules of military registration;
• explanatory (reflected in proving and explaining to employees the rules of military accounting, notification of a summons by the relevant authorities).
The full list of such obligations of employers (enterprises) is set out in Clause 34 of Order No. 1487.
The most frequent violations of the rules for keeping personal military records by businesses
1. Failure to submit information about conscripts, conscripts, and reservists to authorized bodies.
2. Failure to notify at the request of the authorized bodies of conscripts, conscripts and reservists about their call to the relevant district (city) territorial centers of recruitment and social support, SBU bodies, units of the Foreign Intelligence Service.
3. Failure to ensure the timely arrival of conscripts, conscripts and reservists when called by authorized persons.
Penalties for business, responsibility for the manager in case of violation of military accounting rules
Violation of the rules for accounting for conscripts at the enterprise according to its object is a violation of the legislation on defense, mobilization training and mobilization (Article 210-1 of the Code of Ukraine on Administrative Offenses; hereinafter - the Code of Criminal Procedure), for which, accordingly, administrative responsibility in the form of a fine is provided :
• for citizens — from one hundred to two hundred tax-free minimum incomes of citizens (from UAH 1,700 to UAH 3,400);
• for officials — from two hundred to three hundred tax-free minimum incomes of citizens (from UAH 3,400 to UAH 5,100).For committing a violation specified in part one of this article repeatedly within a year, for which a person has already been subject to an administrative fine, as well as for committing such a violation during a special period, a fine is provided:
• for citizens — from two hundred to three hundred tax-free minimum incomes of citizens (from UAH 3,400 to UAH 5,100)
• for officials — from three hundred to five hundred tax-free minimum incomes of citizens (from UAH 5,100 to UAH 8,500).
Who is authorized to draw up protocols on the commission of an administrative offense
It would be logical to assume that, given that, in accordance with Article 235 of the Code of Administrative Offenses, cases of violations of the legislation on defense, mobilization training and mobilization under Article 210-1 of the Code of Administrative Offenses are considered by the TCC and SP, then the protocols on the commission of such administrative offenses should be drawn up by authorized persons these bodies. But it turned out not as expected... After all, both in Article 255 of the Code of Administrative Offenses, which defines the list of persons who have the right to draw up a protocol on administrative offenses, and in the Regulations on Territorial Recruitment and Social Support Centers, approved by a resolution of the Cabinet of Ministers of Ukraine dated February 23, 2022 No. 154, there is no mention of the authority of the TCC and SP (their officials) to draw up protocols. This may be considered an omission by the lawmaker, but we have the fact that the law does not provide for the right of TCCs and joint ventures to draw up protocols in the case of administrative offenses under Article 210-1 of the Code of Criminal Procedure, and this is a gap that can be used to the advantage of business in cases of prosecution to administrative liability under Article 210-1 of the Criminal Procedure Code.
The term of bringing to administrative responsibility
The general term provided for in Article 38 of the Code of Criminal Procedure, in the case of a short-term administrative violation, is two months from the date of the commission of such an offense, and in the case of a long-term offense, no later than two months from the day of its detection.Who can be brought to administrative responsibility for violating the rules of military accounting by enterprises?
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Administrative responsibility for violation of the procedure for keeping records of conscripts at the enterprise rests with officials: managers and employees who are assigned official duties related to keeping military records (if they exist).
We also draw attention to the fact that the Labor Code of Administrative Offenses does not provide for administrative liability for natural persons — entrepreneurs and natural persons engaged in independent professional activity, neither for failure to submit to the TCC and JV lists of employees who are subject to registration at conscription stations, nor for hiring employees , who are not on the military register at their place of residence, nor for not providing a call-up notice to the TCC and SP.What are the most common mistakes made by TCCs and joint ventures when considering administrative offense cases under Article 210-1 of the Code of Administrative Offenses for business violations of military accounting rules?
Based on the analysis of recent judicial practice, most often these are procedural errors:
• prosecution of unauthorized persons for keeping military records at the enterprise;
• signing of the administrative offense protocol by an unauthorized person (for example, an employee of the enterprise instead of its manager);
• failure to establish the identity of the offender and the composition of the administrative offense;
• failure to hand over the protocol on bringing to administrative responsibility the responsible person;
• not notifying the person about the date, place, and time of the case hearing;
• drawing up a resolution without the participation of a person who is brought to administrative responsibility (for example, the resolution of the Eighth Administrative Court of Appeal dated July 17, 2023 in case No. 451/414/23).
