Sunday10 November 2024
korr.in.ua

The circle has closed: how courts respond to "busification" and why TCKs have become law-free zones.

If a "busified" individual goes to court, they have two options.
Круг замкнулся: как суды реагируют на "бусификацию" и почему ТЦК превратились в зоны, где законы не действуют.

The forced mobilization in Ukraine has reached such noticeable proportions that a specific term has emerged in public discourse to describe this phenomenon — "busification." Social media is flooded with hundreds of typical stories and videos showing individuals in military uniforms detaining passersby on city streets and promptly delivering them to the Territorial Recruitment Centers (TRC). Lawyers claim that these detentions are mostly illegal, yet mobilization scandals continue, along with disputes between lawyers and military recruiters.

Military officials justifiably argue that often those subject to mobilization violate the law, and the insufficient pace of mobilization jeopardizes the actual existence of the state. But how do the courts view "busification"? Does justice acknowledge that forced mobilization and the restriction of freedom at the TRC constitute an abuse of authority by TRC employees? Or is it all happening within the framework of the law? The answer to this question was sought by "Telegraph" in the registers of judicial decisions .

"Busification" — TRC — mobilization

The stories of the "busified" that reach the courts are very similar: walking down the street (driving a car) – encountered the TRC – phone confiscated – forcibly held at the recruitment office.

For example, there is a case that was reviewed by the Krasnogvardeysky District Court of Dnipro.

"On October 3, 2024, an individual was stopped by a representative of [TRC] on the street and unlawfully detained in the TRC's administrative building. He was forcibly brought in for a military medical commission (VLC), to which he did not consent, nor was he served a summons, and despite his report of health issues, he was deemed fit for military service," states the case materials.

Or consider another case in the same court.

"On October 2, 2024, an individual was illegally detained by employees of [TRC] and was forcibly taken to the TRC's premises. His sister and daughter arrived at the TRC, where a staff member at the entrance reported that the individual was indeed at the TRC and would remain there overnight "because he was behaving badly" and they would not be allowed to see him," the case materials explain.

Or a criminal case that has been submitted to the Uzhgorod City District Court of the Transcarpathian region.

"On September 17, 2024, an individual left for work on a train in the morning; however, at 8:27, while transferring in Uzhgorod, he was unlawfully detained without explanation by [TRC] employees. Despite having all necessary documents (military registration document, passport, VLC conclusion, summons to TRC for 05.12.2024 for data verification, certificates, applications, and explanations), he was forcibly pulled from the train, loaded into a TRC vehicle, and taken to the TRC's premises. He was held illegally and without communication for several days. As far as his wife knows, he was forcibly made to undergo the VLC again unlawfully, after which he was taken to various military units, where he was not accepted due to his firm refusal based on religious beliefs to take the military oath," the case materials note.

And there are hundreds of similar cases in the judicial decision registry across the country. Well…

What do the courts decide?

How do they respond to such detentions and deprivation of liberty within the walls of the TRC?

We analyzed about fifty such cases and identified two main scenarios of the judiciary's response to "busification."

The first scenario – if mobilized, then already military, so there can be no "illegal detention." What is this about?

For example, according to the summary of a criminal case reviewed by the Kostopol District Court in Rivne region at the end of September in Ivano-Frankivsk region, a citizen was pulled from a bus at a checkpoint by TRC employees and taken to the TRC without any protocols. When the complaint reached the court, the judiciary established that the detained individual had already been enrolled as a cadet and had received the military rank of "soldier."

"For the individual, military service began, and therefore [he] did not experience interference with rights and fundamental freedoms guaranteed by Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The individual is not considered a detained person in the sense of criminal procedural legislation. There is a disagreement by the individual with the actions of authorized bodies related to mobilization. The court states that the conscription of a citizen for military service during mobilization in a special period does not constitute a deprivation of the right to liberty, but is an obligation of a citizen of Ukraine, as provided by Article 65 of the Constitution of Ukraine, and therefore does not represent illegal detention of a person," states the court's ruling.

With similar formulations, such decisions are made by other courts as well. So, can it be done this way? Explains lawyer Aleksandr Zolotukhin.

– If a person is detained and held at the TRC, a lawyer has the right to approach the court with a request that the person is illegally detained and held in some premises. The court should then issue a decision to release the individual. But in practice, this does not work. For instance, duty investigative judges are not always present on-site, and if such requests do arise, the response may come back stating that they are not holding anyone, and the mentioned individual has already been called up and is at the training ground. Therefore, the "busification" may indeed be unlawful, but the mobilization, as its consequence, is legal," Zolotukhin explains to "Telegraph."

The second scenario of the courts' reaction – you should contact the State Bureau of Investigation (SBI).

Here's the thing: in fact, courts in their rulings recognize that "busification" is beyond the legal framework, and TRC employees have no right to deprive a person of liberty. But!

First, deprivation of liberty, forced VLC, phone confiscation, all of this still needs to be proven. And how can this be done when no one is allowed to see the detainee? Thus, such lawsuits in courts often fall apart.

Secondly, "Possible non-compliance by representatives of [TRC] with the administrative procedure for bringing conscripts to military registration and its passage, or possible exceeding their powers during its implementation, is a basis for addressing the relevant law enforcement authorities and their response within the limits of their authority", as noted in the text of the ruling of the Krasnogvardeysky District Court of Dnipro.

"Relevant law enforcement authorities" in the case of holding TRC employees accountable is the SBI.

What is the SBI doing?

According to the latest available data from this law enforcement agency, from February 24, 2022, to August 22, 2024, the SBI investigated 408 criminal cases related to the operations of the TRC. And only 10 TRC employees received a guilty verdict as a result of these proceedings. Not too many, especially considering that the SBI more frequently reports on the detention of bribers in the TRC. For instance, in the high-profile case of assaulting a man by employees of the Sambir TRC, nothing is known about the verdict against the suspects.

So what should be done? Courts send cases to the SBI, and the SBI does not actively respond to such instances. Are there any legal mechanisms in place to protect the rights of citizens who are unlawfully detained? It should be noted that we are talking exclusively about unlawful detention – "busification."

– After all, a person may be wanted, ignore summons, violate military registration rules. In such cases, the police have the right to carry out an administrative detention if there is a request for that person, — Zolotukhin emphasizes.

According to experts, in cases of unlawful detention, the circle closes, and unfortunately, there is no influence on the situation.

– Response can only occur based on results. For example, if an act occurs that borders on a criminal offense, the case is sent to the SBI, they begin an investigation, but this is the response based on results. At the moment of committing the offense, nothing can be realistically done to prevent it.

The TRC has taken on the functions of a law enforcement agency. They carry out detentions, supposedly because this facility (the TRC building, — Ed.) is somewhat of a restricted regime, denying the use of mobile phones and access to lawyers on the grounds that it is dictated by security concerns. Effectively, a zone outside of legal control