The Dnipropetrovsk District Administrative Court in a case regarding the mobilization of a patient with chronic viral hepatitis C in violation of the procedure for passing the VLK disagreed with the position of the Supreme Court.
The Supreme Court in case No. 160/2592/23 indicated that mobilization without passing a military medical commission is not a reason for exemption from military service, and in general, establishing the fact of a violation of the CCC mobilization procedure does not lead to the need to release an illegally mobilized person.
"The procedure for conscripting a person liable for military service during mobilization is irreversible, that is, one that has already taken place, and the recognition of the conscription procedure as unlawful does not result in the restoration of the previous status of the person conscripted for military service." – emphasized the judges of the Supreme Court.
However, the court of first instance, the Dnipropetrovsk District Administrative Court, which on March 20, 2025, considered a similar case No. 160/33452/24, did not agree with this position.
In this case, the relevant evidence established the fact of recognition of fit and mobilization of a patient with chronic viral hepatitis C (CHC), HCV RNA, sustained virological response, who had been receiving treatment since 2022. At the same time, the VLC took place in violation of the procedure.
The presiding judge of the Dnipropetrovsk OAC, Anna Slastyon, indicated that in the absence of proof of suitability, conscription and subsequent referral for military service are unlawful.
"The court holds the position that unlawful actions cannot have lawful consequences, and the onus of proving a person's fitness for military service lies with the subject of government authority. Any other approach would contradict the principles that distinguish courts of administrative jurisdiction from other types of jurisdiction," she noted.
Thus, the Dnipropetrovsk District Administrative Court applied one of the basic principles of law in this case, namely that unlawful actions cannot cause lawful consequences. As the judge pointed out, this principle was not used by the Supreme Court in case No. 160/2592/23.
"The court disagrees with the position of the Supreme Court in case No. 160/2592/23 that the fact that the plaintiff did not undergo a medical examination during his conscription for military service is not evidence of the plaintiff's unfitness for military service and is not a basis for the plaintiff's discharge from military service in accordance with Article 26 of the Law of Ukraine "On Military Duty and Military Service", — which defines an exclusive list of such grounds.
In the court's opinion, the plaintiff's failure to undergo a medical examination, as well as the violation of the procedure for conducting it, indicates that the defendant, in accordance with Part 2 of Article 77 of the Civil Code of Ukraine, has not proven the plaintiff's suitability for military service.
A different approach contradicts the objectives of administrative justice, the court noted.
History of the dispute
In December 2024, the man filed a lawsuit asking the court to declare the decision of the Military Medical Commission unlawful and cancel it, to oblige the regional Military Medical Commission to conduct a military medical examination with a full examination, to declare the order of the head of the Military Medical Commission regarding conscription unlawful and cancel it, and to oblige the military unit to dismiss him from service.
He indicated that on November 8.11.2024, 7, he was taken by the CCC employees to the Kamyansk Council's KNP "City Hospital No. XNUMX" for medical examination, where he was found fit. On the same day, he was taken to the training battalion.
At the same time, the military medical commission did not evaluate the results of the diagnostic report regarding the presence of antibodies to hepatitis C in his blood. The plaintiff also did not undergo an examination by a psychiatrist, ophthalmologist, dentist, or infectious disease specialist.
Thus, from the data of the Helsi application it is seen that the appointment with the ophthalmologist was carried out on 9.11.2024 - at a time when the plaintiff was already in the military unit, and the consultation with the infectious disease doctor is incomplete. The plaintiff, among other things, points to the formality of the medical examination, which was conducted in less than an hour.
The plaintiff applied to the regional military medical commission of the Ministry of Defense, asking to be re-appointed. However, they were informed that the referral of an active-duty serviceman for a medical examination is carried out at the place of military service based on a report addressed to the commander.
The plaintiff disagrees with the contested conclusion of the VLK, since it does not take into account the plaintiff's diagnosis of "aggressive form of hepatitis C v1", perforated stomach ulcer, and TBI in the form of VSD.
What did the Dnipropetrovsk District Administrative Court decide?
The court, in particular, recalled that each conscript is examined by a surgeon, therapist, neurologist, psychiatrist, ophthalmologist, otolaryngologist, dentist, dermatologist, and, if medically indicated, by doctors of other specialties (clause 3.1. of Chapter 3, Section II of Regulation No. 402).
From clause 3.4 of Chapter 3, Section II of Regulation No. 402, it is seen that before the examination of military conscripts, they are subjected to a general blood test, a general urine test, a serological blood test for: antibodies to the human immunodeficiency virus (HIV), surface antigen to the hepatitis B virus (HbsAg), total antibodies to the hepatitis C virus (anti-HCV), microprecipitation reaction with cardiolipin antigen or total antibodies to pale treponema (RW), etc.
Doctors who are included in the VLK from municipal or state-owned healthcare institutions, during a medical examination, are familiarized with medical records in the Unified Health System and other medical documents that characterize the state of health.
Returning to the circumstances of the case under consideration, the court draws attention to the following circumstances.
During the trial, it was established that the plaintiff is a patient with chronic viral hepatitis C (CHC), HCV RNA, a stable virological response, has been receiving treatment since 2022, which is confirmed by the advisory opinion of an infectious disease specialist dated February 14.02.2025, XNUMX.
At the time of the medical examination, according to the diagnostic report of the Kamyansk City Primary Health Care Center dated 8.11.2024/XNUMX/XNUMX for the service "analysis, antibodies to hepatitis C", laboratory test results confirmed the presence of antibodies to hepatitis C in the patient's blood.
Therefore, the plaintiff is a carrier of the hepatitis C virus.
According to Article 4 of Section I of the Explanations on the Application of Articles of the Schedule of Diseases, Conditions and Physical Defects Determining the Degree of Fitness, during mobilization, a medical examination is carried out according to the relevant paragraph of the article, taking into account the degree of liver function impairment at the time of the examination.
However, as can be seen from the case materials, the plaintiff did not undergo an examination by an infectious disease doctor during the medical examination, despite the presence of a positive test for the presence of antibodies to hepatitis C in his blood, which is a violation of clause 3.1. Chapter 3, Section II of Regulation No. 402.
Thus, the case materials contain an electronic referral to an infectious disease doctor, valid as of November 8.11.2024, XNUMX, with no note in it stating that the appointment was completed.
Also, in the contested certificate of the Military Medical Service dated 8.11.2024/8.11.2024/4, based on the results of the medical examination conducted on 54/XNUMX/XNUMX, an assessment of the plaintiff's fitness for military service in the context of the application of the relevant article of the Schedule of Diseases, which includes chronic viral hepatitis, contained, in particular, in Article XNUMX and Article XNUMX of the Schedule of Diseases, was not provided.
In addition to the above violations, the circumstances regarding the plaintiff's failure to undergo a medical examination by a psychiatrist, ophthalmologist, and dentist were confirmed, which is a violation of Clause 3.1. Chapter 3, Section II of Regulation No. 402.
Thus, from the electronic referral of the Helsi application, it is seen that the appointment with the ophthalmologist took place on 9.11.2024/8.11.2024/XNUMX, at a time when the plaintiff was sent to a military unit on XNUMX/XNUMX/XNUMX.
The circumstances of the plaintiff's violation of the procedure for undergoing a medical examination were not refuted by the defendants during the consideration of the case with proper and reliable evidence, despite the fact that the evidence was twice requested by the court from the VLK at the CCC.
In particular, the decisions of the Dnipropetrovsk OAS in the VLK at the CCK demanded, among other things, doctors' conclusions indicating the date of the examination, the examination and medical examination card of the plaintiff; information on whether he was sent for an additional medical examination or a repeated medical examination, as well as the results of such examination/examination; the conclusion of an ophthalmologist and an infectious disease doctor following the examination of the plaintiff.
The defendants did not provide the said evidence.
Therefore, by virtue of the provisions of Part 2 of Article 77 of the Code of Civil Service, the defendants have not proven the legality of the conclusion on the plaintiff's suitability for military service.
Despite the fact that the court is not entitled to assess the actions of the VLK doctors when they applied appropriate methods of examining the plaintiff, studying medical documentation, determining diagnoses and their compliance with a specific article of the Schedule of Diseases, Conditions and Physical Defects Determining the Degree of Fitness for Military Service, The court has the right to verify the legality of the conclusion of the VLK within the framework of compliance with the procedure for adopting the contested conclusion.
The evidence available in the case materials and the circumstances clarified in the court sessions indicate a violation of the procedure for the adoption of the contested resolution by the VLK, issued in the form of a certificate dated 8.11.2024, in the disputed legal relations.
In the court's opinion, the established violations are significant and prevent the achievement of the goal of conducting a medical examination to determine the plaintiff's fitness for military service.
When assessing the procedural violations committed by the subject of public authority when adopting the contested conclusion of 8.11.2024, the court takes into account the correlation of two basic principles of law: “illegal actions do not entail lawful consequences” and, in contrast to it, the principle “a formal violation of the procedure cannot be the result of the cancellation of a decision that is correct in substance.”
The boundary that separates a significant violation from an insignificant one is the establishment of the following circumstance: could the decision of the subject of authority have been different, provided that he followed the procedure for its adoption prescribed by law?
In this case, the court states that the conclusion of the subject of public authority based on the results of the medical examination could have been different, provided that the subject of public authority followed the procedure specified in Regulation No. 402.
Therefore, the court agrees with the plaintiff's arguments about the illegality of the resolution of the VLK, issued in the form of a certificate dated 8.11.2024/XNUMX/XNUMX, which has the effect of canceling it.
Regarding the stated demands for the cancellation of the CCC order regarding the call for military service during mobilization, as well as the obligation of the military unit to release the plaintiff from military service.
From the legal regulation existing at the time of the emergence of the disputed legal relationship, it is apparent that undergoing a medical examination and establishing suitability for military service are mandatory conditions, without which conscription of a person into military service is impossible.
Therefore, in order to call up a person for military service during mobilization, it is necessary to establish the health suitability of the conscript for military service.
During the consideration of the case, the court overturned the decision of the VLK, due to its illegality.
Therefore, in the absence of proof of the plaintiff's suitability for military service, his conscription for military service and subsequent assignment to a military unit for military service are unlawful.
The Court holds that unlawful actions cannot have lawful consequences, and the burden of proving a person's fitness for military service lies with the subject of public authority. Any other approach would be contrary to the principles that distinguish courts of administrative jurisdiction from other types of jurisdiction.
When satisfying the claims in this part of the claims, the court is also guided by Part 1 of Article 17 of the Law "On the Execution of Decisions and Application of the Practice of the European Court of Human Rights", according to which courts apply the Convention and the practice of the Court as a source of law when considering cases.
Thus, in its judgment in the case of Rysovsky v. Ukraine, the ECHR emphasized the particular importance of the principle of “good governance.” It provides that, when it comes to matters of general interest, state bodies must act in a timely and proper manner and as consistently as possible. In particular, state bodies are obliged to introduce internal procedures that will enhance the transparency and clarity of their actions, minimize the risk of errors, and promote legal certainty in legal relations.
The principle of “good governance” should not, as a rule, prevent public authorities from correcting occasional errors, even those caused by their own negligence. Any other position would be tantamount to sanctioning an improper allocation of limited public resources, which would in itself be contrary to the general interest.
The Court stated that public authorities which fail to implement or comply with their own procedures should not be able to benefit from their unlawful actions or avoid the performance of their duties. The risk of any error by a public authority should rest with the State itself, and errors cannot be corrected at the expense of the persons concerned.
The Court understands that the issues of mobilization and conscription are extremely important and sensitive topics in the context of martial law imposed on the territory of Ukraine and the lack of mobilization resources.
However, these circumstances cannot justify the violations that occurred in the disputed legal relationship.
The fact that the defendant party (VLC at the CCC) when adopting the contested conclusion did not take measures to study the results of the plaintiff's tests for the presence of antibodies to hepatitis C in his blood, and also violated the procedure for undergoing a medical examination, indicates that the defendant party failed to fulfill its obligation to clarify all the circumstances of the case (Article 2 of the Code of Civil Procedure), because it is the defendant who must prove in court that his decision is lawful (Part 2 of Article 77 of the Code of Civil Procedure).
Regarding an effective method of protection.
In the judgment of 31.07.2003 in the case of Dorany v. Ireland, the European Court of Human Rights noted that the concept of “effective remedy” implies the prevention of a violation or the cessation of a violation, as well as the establishment of a mechanism for the restoration, restoration of the violated right. Moreover, as emphasized in the judgment of the ECHR in the case of Salah Sheikh v. the Netherlands, an effective remedy is the prevention of the implementation of measures that are contrary to the Convention, or the occurrence of an event whose consequences will be irreversible. When deciding the case of Kaic and Others v. Croatia (judgment of 17.07.2008), the ECHR indicated that it would be unacceptable for the Convention if Article 13 declared the right to an effective remedy, but without its practical application.
Therefore, the practical application of an effective protection mechanism is mandatory. The opposite approach would contradict the principle of the rule of law.
When choosing a method of restoring the plaintiff's violated right, the court proceeds from the principle of the rule of law and the principle of the effectiveness of such protection, which requires the immediate restoration of the rights of the person who applied for judicial protection by a court decision without the need for additional applications and fulfillment of any other conditions for this.
Therefore, summing up the above, the court believes that an effective defense of the plaintiff's violated right is to recognize as unlawful and cancel all decisions made as a result of the violation of the plaintiff's conscription procedure for military service.
Therefore, both the order regarding the conscription for military service and the order of the commander of the military unit regarding the enlistment in the personnel lists are subject to cancellation. In addition, the violated rights of the plaintiff are subject to protection by obliging the military unit to release the plaintiff from military service.
Any other method of protection, according to the court, will not be effective and fair, since the violations actually committed by the subject of authority will be corrected at the expense of the person against whom the procedure was violated.
Instead, conducting a medical examination in the status of a military serviceman based on a report in accordance with clause 6.1. of Chapter 6, Section II of Regulation No. 402 will place the plaintiff in an unjustified position, which will require the initiation of a new medical examination procedure, the necessity of which is caused exclusively by the unlawful actions of the subject of public authority at the stage of the plaintiff's conscription for military service.
Regarding the conclusions of the Supreme Court in case No. 160/2592/23.
The court does not take into account the conclusions of the Supreme Court in case No. 160/2592/23, as it considers them inapplicable to the disputed legal relations.
Thus, in case No. 160/2592/23, the plaintiff noted the absence of illnesses that would indicate his possible unsuitability for military service.
Instead, in this case, the plaintiff has denied his suitability for military service since the onset of the disputed legal relationship.
In case No. 160/2592/23, the courts consider the proper restoration of the plaintiff's violated rights by restoring the person's position that existed before such violation of rights.
In developing this position, the court in this case applied one of the basic principles of law, namely that unlawful actions cannot cause lawful consequences. This principle was not used by the Supreme Court in case No. 160/2592/23.
The court disagrees with the position of the Supreme Court in case No. 160/2592/23 that the fact that the plaintiff did not undergo a medical examination during his call-up for military service is not evidence of the plaintiff's unfitness for military service and is not a basis for the plaintiff's discharge from military service in accordance with Article 26 of the Law of Ukraine "On Military Duty and Military Service", which defines an exclusive list of such grounds.
In the court's opinion, the plaintiff's failure to undergo a medical examination, as well as the violation of the procedure for conducting it, indicates that the defendant, in accordance with Part 2 of Article 77 of the Civil Code of Ukraine, has not proven the plaintiff's suitability for military service.
Another approach contradicts the objectives of administrative justice.
On the other hand, the absence in Article 26 of the Law "On Military Duty and Military Service" of such a basis for exemption from military service as the plaintiff's failure to undergo a medical examination during his conscription is solely evidence that the legislator, when writing the specified norm, excluded the possibility of military service by a person who is unfit for service or has not undergone a medical examination.
Despite the above, the court is not deprived of the opportunity to restore violated rights and protect the interests of the individual, using the principle of the rule of law and relying on Article 129 of the Constitution of Ukraine, which determines that a judge, when administering justice, is independent and guided by the rule of law.
According to Article 6 of the Code of Civil Procedure of Ukraine, when deciding a case, the court is guided by the principle of the rule of law, according to which, in particular, a person, his rights and freedoms are recognized as the highest values and determine the content and direction of the state's activities.
The Court applies the principle of the rule of law, taking into account the case law of the European Court of Human Rights.
Part 2 of Article 77 of the Code of Administrative Offenses of Ukraine stipulates that in administrative cases on the illegality of decisions, actions or inaction of a subject of public authority, the obligation to prove the legality of his decision, action or inaction lies with the defendant if he objects to the administrative claim.
Therefore, the court decided to partially satisfy the administrative claim.
- To declare the decision of the military medical commission unlawful and to cancel it.
- To declare unlawful and cancel the order of the head of the CCC regarding conscription and sending for military service to a military unit.
- To declare unlawful and cancel the order of the commander of the military unit regarding the inclusion in the lists of personnel of the military unit.
- To oblige the military unit to release him from military service with subsequent exclusion from the personnel lists.
To refuse to satisfy the remaining part of the claims.
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