‘Second-class soldiers’. Why Ukraine’s ATO and JFO prisoners are not entitled to demobilization

"In 2018, when the SBU gave me and the other guys this certificate, we immediately said that it was wrong, because we were servicemen, we were captured by the enemy. We were told that they could not issue another note. In 2024, I finally resigned from the army, but not as a former prisoner of war, but as a person with a disability. But it is very offensive to me that now in Ukraine there seem to be two kinds of prisoners of war – the ‘right’ ones, who were captured after February 24, 2022, and the ‘wrong’ ones, like me, who suffered in the basements of the ‘DPR’ for two months shy of three years. They shot me there, fractured my skull, broke my ribs, and tried to convict me. It turns out that none of this happened in my life?" says Mykola.

Why do soldiers who were held captive in the occupied parts of Donetsk and Luhansk oblasts before the full-scale invasion today not have the status of prisoners of war, and therefore the right to be discharged from the army? And will anything change in this matter? hromadske sought answers from military personnel, lawyers, and MPs.

Captive to statuses

"Before we talk about the status of military personnel who have been captured by the enemy, we need to take into account the status of certain events. In April 2014, after the start of Russian aggression, an anti-terrorist operation (ATO) was declared in Ukraine, not a war with martial law. From a legal point of view, we were, so to speak, dealing with terrorists in eastern Ukraine, not a hostile army. Terrorists take hostages, not prisoners. That is why the soldiers who were actually held captive on the territory of the ‘DPR/LPR’ were officially recognized as hostages in Ukraine. However, the meaning of the term ‘hostage’ as defined in the Law of Ukraine ‘On Combating Terrorism’ has little to do with the situation with our military. In February 2022, martial law was declared in Ukraine, so the military who were captured by the enemy after that date have the status of prisoners of war," explains Oksana Dohoter, a lawyer at Actum Law Firm.

According to her, although after 2022 Ukraine is actually fighting the same enemy, legally we are talking about two different legal statuses of events and their participants.

That is, for example, the head of the medical service of the Azov brigade, Yevhen Chudnietsov, who has been defending Ukraine since 2014 and was actually held captive twice – from February 2015 to December 2017 and from May 2022 to July 2023 – was legally held only once.

"Journalists often ask me to compare the conditions of detention of prisoners before and after 2022. But I can only speak about myself. Yes, in my first captivity, I could receive food parcels from home, phone calls, and had family visits. During my second captivity, I had none of this. During the second captivity, I was tortured severely, I lost almost half my weight. But my teeth were pulled out with pliers in the first captivity when I was considered a hostage. There were torture and humiliation in both the first and second captivity," says Yevhen.

He says that it's not about the conditions of detainment or when the Ukrainian military was tortured more – before or after 2022 – because in general, hostages and prisoners are absolutely equal people.

"Why are they legally different? I don't understand why hostages are not automatically equated with prisoners of war," Chudnietsov asks.

That is, why not add "held hostage" to the relevant article of the Law of Ukraine "On Military Duty and Military Service", "On Amendments to Certain Legislative Acts of Ukraine on Certain Issues of Military Service, Mobilization and Military Registration" with a comma or in brackets after the words "held captive"?

Is it really possible to automatically equate soldiers-hostages to prisoners of war and is the "separated by commas" option possible, hromadske asked MP Solomiya Bobrovska, a member of the Verkhovna Rada Committee on National Security, Defense and Intelligence. In 2023-2024, she actively defended the right of former prisoners of war to demobilization.

"I was not aware of the problem of demobilization of hostages. You are the first journalist to address me about hostages during the ATO and JFO. Neither the Security Service of Ukraine nor the Ministry of Defense communicated with our committee on this issue. None of the soldiers who were former hostages broached it with us. This problem somehow fell off the radar. I don't think it will be possible to automatically equate hostages with prisoners of war. I need to study this issue, to understand it," Solomiya Bobrovska said in a comment to hromadske.

Then we turned to the SBU with the same question. They answered officially: currently, the legal and social protection of hostages requires legislative regulation.

While MPs are pondering it

No one can say today whether the Verkhovna Rada Committee on National Security, Defense and Intelligence will immediately rush to solve the problem of hostage soldiers or whether it will solve it positively. And what should these hostages do if they want to demobilize? Look for other grounds for release, like Mykola Herasymenko? Those unable should then have a third child or become a caregiver for elderly relatives with a disability?

"Not at all," says lawyer Oksana Dohoter. "They have the legal opportunity to demobilize as former hostages. They just need to be patient."

According to the lawyer, the first thing a soldier should do is obtain a certificate from the SBU confirming that they were held captive during the ATO and JFO periods.

"The document that Mykola Herasymenko and other hostages received from the headquarters of the Anti-Terrorist Center at the SBU is, in fact, an information letter, because the form of the certificate and its content are provided for by the relevant Procedure. And to confirm the fact of being in captivity, a certificate is required as a certain type of document defined by law. Currently, the legal successor of the Anti-Terrorist Center headquarters is the Coordination Headquarters for the Treatment of Prisoners of War. If a soldier did not receive such a certificate before, they have the right to apply to the Coordination Headquarters for it," explains the lawyer.

Such a certificate is the basis for dismissal from military service.

For its part, the SBU told hromadske that to obtain a certificate of detainment as a result of armed aggression against Ukraine, a person (or their legal representative) must write an application to the Ministry of Defense or another central executive body that manages military formations. Ex-hostages can also apply to the Commission for Establishing the Fact of Deprivation of Personal Liberty Due to Armed Aggression against Ukraine, which operates under the Ministry of National Unity of Ukraine (formerly the Ministry of Reintegration).  

"The Regulation on the work of the commission does not limit the period for which it can establish the fact of the beginning and end of captivity, meaning that such a commission can establish facts during the ATO. Thus, for those soldiers who have a similar information letter from the headquarters of the Anti-Terrorist Center at the SBU, like Mykola Herasymenko, such a state-defined procedure is also available," said lawyer Oksana Dohoter.

The decision document of the Commission on establishing the fact of deprivation of personal liberty as a result of armed aggression against Ukraine also paves the way for demobilization. After all, Article 26 of the Law of Ukraine "On Military Duty and Military Service" stipulates that a person's stay in captivity is grounds for dismissal. The commission's decision is enshrined in the list of documents to confirm the fact of a soldier's captivity, which is established by the Procedure for Dismissal from Military Service.  

If a soldier who is a former hostage submits a report to the command on dismissal from military service, they must attach a certificate from the Coordination Headquarters or a decision of the Commission on establishing the fact of deprivation of personal liberty as a result of armed aggression against Ukraine.

"There are different situations. For example, the content of a certificate from the Coordination Headquarters and the content of other documents may not be enough for the commission under the Ministry of Unity to make a positive decision regarding a particular soldier. After all, the commission only works with the available documents, it analyzes what the applicant submits, and cannot collect evidence on its own, for example, by questioning witnesses. In this case, the former hostage can apply to the commission again, increasing the amount of evidence. If, even in this case, the serviceman receives a decision from the commission to refuse to establish the fact of deprivation of his personal freedom as a result of armed aggression against Ukraine, they can go to court to protect their rights," says lawyer Oksana Dohoter.

Legal precedents

According to Andriy Kovaliov, a lawyer at Actum Law Firm, there are cases in Ukraine where former hostages have proved their actual captivity in court. In these decisions, the courts recognized that a person was held captive on the basis of a combatant's certificate, a certificate of direct participation in hostilities, a letter from the headquarters of the Anti-Terrorist Center at the SBU, or other documents confirming the fact of being held hostage.

"Relevant court cases are considered in civil proceedings. At the same time, combatants are exempt from paying court fees. Currently, there are few such cases, because the trials are quite lengthy – not every soldier has the nerve for it. In addition, few of them know that they can prove their status as a prisoner of war in court, so they do not go to court. Not even everyone in the legal community knows that such court cases are possible," says Andriy Kovaliov.

The lawyer draws attention to another aspect of the problem: a military unit, despite the decision of the Commission on establishing the fact of deprivation of personal liberty as a result of armed aggression against Ukraine, may refuse to discharge a soldier from the army. Then they have the opportunity to appeal this refusal in court.

"But this is all very troublesome. It is easier to resolve the issue at the legislative level," adds Andriy Kovaliov.

Mykola Herasymenko notes that this should be done once and for all, so that no one and nothing can influence the status of prisoners of war.

"In December 2017, after our release in Kharkiv, we were met by the President of Ukraine, and in Boryspil, our plane was greeted by a lot of people – everyone was happy, we were called heroes, and we were paid 100,000 hryvnias ($3,762) as enemy’s prisoners. A few years have passed, the government and situation have changed, and those of us whom the state itself called hostages, not prisoners of war, have been pushed to the background, sidelined. The state is concerned about the current prisoners, but we have been forgotten. What guarantee is there that a new government, in a new situation, won't similarly sideline the prisoners from the full-scale war period? I've been told to my face that I wasn't a prisoner, so the same could be said to them in the future. The status of prisoners of war needs to be clearly defined in the law so that it never leaves any room for doubt," says Lieutenant Herasymenko.