no. 07-00-355/2020-02 date: 12.7.2021.

OPINION

The opinion was issued in the proceedings regarding the complaint filed by AA from B against the Ministry of Defense – Military Health Administration, due to discrimination based on health condition. In the complaint, the complainant stated, inter alia, that he had been in the status of a professional member of the army – a professional military person – non-commissioned officer  since 1996, that he had contracted melanoma in 2016, from which he had been cured after surgical treatment, and that he had been declared capable of performing professional military service in his branch, that is service, by an Opinion of the Consulting Body of the Clinic for Skin and Venereal Diseases from April 3, 2019.  He further stated that in the internal competitions from August 1, 2019 and July 1, 2020, he applied for admission to professional military service as an officer employed for an indefinite period of time, in the same branch in which he served as a non-commissioned officer, and that the Findings, assessment and opinion of the Higher Medical Commission of October 24, 2019 determined that he was capable of performing professional military service, but did not meet the health criteria for admission to professional military service as an officer, due to the diagnosis stated in the finding, by which he was denied the possibility of promotion. This opinion, as he stated, was confirmed by the Findings, Assessment and Opinion of the Main Military Medical Commission of April 28, 2020, which “unanimously stated that AA is incapable for admission to the PVS as an officer under TBS 39.1”. In the complaint, the applicant pointed out that his current job (radio eavesdropper) requires much greater health ability than the job for which he applied (data processing officer), that the diagnosis he has is not directly related to the working conditions and tasks performed in this job and that it follows that it is “clear and unambiguous” that his state of health was the “key” reason why he was not admitted to professional military service as an officer, that is, to a higher rank. The statement of the Ministry of Defense – Personnel Administration, among other things, states that the Personnel Administration is of the opinion that the persons participating in the internal competition, pursuant to Article 22 and in connection with Articles 11 to 17 of the Decree on Admission to Professional military service, are candidates for admission to professional military service, so that although the complainant at the time of application was in the status of a professional military person – non-commissioned officer, he was considered a candidate for admission to professional military service as an officer employed for an indefinite period of time, especially bearing in mind that there is a change of status during the transition from non-commissioned officer to officer employed for an indefinite period. It is further stated that item 39.1 of the valid List of Diseases, according to the column “for PVL” provides the assessment “capable”, for the diagnosis of the complainant, while according to the column “for candidates” the grade “incompetent” is provided. Thus, bearing in mind that he had the candidate status in internal competitions, pursuant to item 39.1 of the List of Diseases, according to the column “for candidates”, it was assessed that he does not meet the health criteria for admission to professional military service as an officer. The statement pointed out that for the stated reasons, the Finding, Assessment and Opinion of the Higher Military Medical Commission stated that the complainant was capable of professional military service as a non-commissioned officer and did not meet the health criteria for admission to professional military service as an officer, as a candidate, which the Main Military Medical Commission confirmed in its opinion. During the procedure, it was determined that neither the Law on the Army, nor the Decree on Admission to Professional Military Service, except for the general conditions that a professional military person must meet – that he is medically and psychophysically fit for service in the Serbian Army, do not prescribe special health conditions to fulfill for promotion to a higher rank. Furthermore, starting from the allegations from the statement that item 27 of the Decision on determining the list of diseases, injuries, bodily defects, conditions and deficiencies according to which health fitness for military service is assessed defines that the assessment of health fitness of candidates for service in the Serbian Army is given according to the column “for candidates”, after the analysis of the said decision, it can be concluded that a difference has been made in assessing the health ability of professional military personnel and of candidates, as well as that different criteria are applied when assessing their health ability. Namely, item 26 of the Explanation of this decision, among other things, stipulates that the assessment of the health ability of a professional military person (officer and non-commissioned officer) “candidate for other positions in the professional selection of personnel in the Ministry of Defense and the Serbian Army” is given according to the column “for PVL”, while item 27 stipulates that the assessment of the health ability of candidates for service in the Serbian Army, candidates for admission as students, cadets and scholarship holders, candidates for renewal of contracts for admission to service in the Serbian Army, candidates for education (professional soldiers), candidates for admission to the active reserve and for admission to special purpose units is given according to the column “for candidates”. Furthermore, the Explanation for the Application of the List of Diseases stipulates, inter alia, that the assessment of the health fitness of professional military personnel for military service may be: “capable”, “limited ability” and “incapable”, the assessment of candidates for professional military service may be: “capable” and “incapable”, while the assessment of the health ability of the candidate for student, cadet and scholarship holder can be: “capable” and “does not meet the health criteria”. Considering that the complainant is already a professional military person in accordance with item 9 of the Law on the Serbian Army, it is unclear for what reasons, the assessment of his health ability was performed by the column for “candidates”, given that he is in professional military service as a non-commissioned officer since 1996. In support of this illogicality is the opinion of the Legal Administration of the Secretariat of the Ministry of Defense, No. 972/20 of February 24, 2020, which states, inter alia, that “according to the provisions of the Law on the Serbian Army and the Law on the Yugoslav Army, when it comes to assessment of the medical fitness of a professional military person, there is no difference between the assessment of the medical fitness of an officer and a non-commissioned officer, and that it would be contradictory for the same professional military person as a non-commissioned officer to be fit for professional military service without any restrictions, and as an officer, with the same medical documentation, be declared unfit for professional military service.” Also, the analysis of the conditions prescribed by the Internal competitions for admission to professional military service as an officer for an indefinite period in the Directorate for Intelligence and Reconnaissance Affairs from August 1, 2019, and July 1, 2020, found that the only criterion related to the health condition of the candidate reads: “that he is medically and psychophysically fit for service in the Serbian Army”. Considering that the statement states that the reason for the decision of the Higher and Main Military Medical Commission is that the diagnosis of the complainant under item 39.1, according to the column for candidates, envisages a grade of “incompetent”, it can be concluded that with the existing diagnosis the complainant could not be admitted to professional military service as a non-commissioned officer, where he has been since 1996 up to now. Having in mind item 27 of the Decision on Amending the Decision on Determining the List of Diseases, Injuries, Physical Defects, Conditions and Deficiencies, according to which the medical fitness for military service is assessed, which prescribes that the medical fitness of candidates for service in the Serbian Army admission as a student, cadet and scholarship holder, candidate for education (professional soldiers), candidate for admission to the active reserve, as well as for admission to special purpose units is given according to the column “for candidates”, and the complainant, as a professional military person, does not belong to any of the above categories, it is obvious that his health ability should have been assessed according to the column for “PVL”. Therefore, the Commissioner gave the opinion that by deciding that the complainant does not meet the health requirements for admission to professional military service as an officer for an indefinite period, the Ministry of Defense – Military Health Directorate violated the provisions of Article 27, paragraph 1, in conjunction with Article 16. paragraph 2 of the Law on Prohibition of Discrimination. The Ministry of Defense – Military Health Administration has been recommended that in the future competitions, the health fitness of professional military personnel be assessed according to the column for “PVL” according to the current List of Diseases, Injuries, Physical Defects, Conditions and Deficiencies according to which health fitness for military service is assessed. bearing in mind that these persons have already been declared fit for professional military service, as well as to eliminate the consequences of discriminatory treatment of the complainant.

COMMISSIONER FOR THE PROTECTION OF EQUALITY

Brankica Janković