It is not possible to equate a lawyer's request to the TCC to provide information on the possibility of receiving a deferment from the draft with an appeal by a conscript to make a decision on deferment. Taking into account the legal nature of the "lawyer's request" and taking into account the issues raised in the lawyer's request, it is not an appeal by a conscript to resolve the issue of granting a deferment from conscription.
On this stressed The Supreme Court as a member of the panel of judges of the Cassation Administrative Court in the decision of November 7, 2024 in case No. 340/2502/23, reported the Judicial and legal newspaper.
The essence of the dispute
The man appealed to the court with a lawsuit, in which he asked to declare it illegal and cancel the decision of the TCC that he does not have the circumstances that give the right to a postponement based on paragraph 4 h. 1 of Article 23 of the Law "On Mobilization Training and Mobilization".
As a reason for the postponement, he referred to his maintenance of three children under the age of 18.
Yes, he received a summons with a request to appear before the TCC. Subsequently, the representative of the husband - a lawyer - sent a lawyer's request to the address of the TCC with a request to provide information on the possibility of granting a postponement, since the client is a person who has three children under the age of 18 to support.
TCC reported in a letter that there are no grounds for postponement, as the man has only two children under the age of 18 and one child under the age of 21.
The position of the Supreme Court
The Supreme Court proceeds from this.
According to the law, conscripted women and men who have three or more dependent children under the age of 18 are not eligible for military service during mobilization.
Therefore, the determination of the fact that the military conscript has three or more children under the age of 18 is decisive for the resolution of this public-law dispute, and only under the specified circumstances can a person exercise his right to receive a deferment.
Courts of previous instances established that the plaintiff is a member of a large family and supports three children.
However, only two children are under the age of 18.
The above shows that the plaintiff is not a person who has the right to postponement.
At the same time, the presence in the plaintiff's family of the status of having many children, and the maintenance by the plaintiff of three children, one of whom has reached the age of majority, do not give him the right to postponement in the absence of an established fact that he maintains three or more children under the age of 18.
Under the given circumstances in the case, the Supreme Court reaches a conclusion about the validity of the TCC's answer regarding the failure to state in the lawyer's request the circumstances that grant the right to postponement.
In addition, the Supreme Court agrees with the conclusions of the courts of previous instances about the fallacy of the plaintiff's arguments in terms of equating the submitted lawyer's request to provide information about the possibility of obtaining a postponement of the draft with an application for making a decision on postponement, in view of the following.
The first part of Article 24 of the Law "On Advocacy and Advocacy" defines a lawyer's request as a written appeal by a lawyer to a state authority, a local self-government body, their officials and employees, enterprises, institutions and organizations regardless of the form of ownership and subordination, public ob connections on the provision of information, copies of documents necessary for the lawyer to provide legal assistance to the client.
In accordance with the second part of Article 24 of the Law "On Advocacy and Advocacy", the state authority, local self-government body, their officials and employees, managers of enterprises, institutions, organizations, and public associations, to whom a lawyer's request has been sent, are obliged no later than five working days from the day of receiving the request to provide the lawyer with relevant information, copies of documents, except for information with limited access and copies of documents containing information with limited access.
So, a lawyer's request is a written appeal of a lawyer addressed to subjects of authority, other legal entities, the purpose of which is to obtain the information necessary for the lawyer to provide legal assistance to the client.
Taking into account the legal nature of the "lawyer's request" and taking into account the issues raised in the lawyer's request, the latter is not an appeal by a conscript to resolve the issue of granting a deferment from conscription for military service during mobilization.
The specified circumstances indicate that the plaintiff did not apply to the TCC with documents confirming the right to a postponement of conscription for military service during mobilization on the grounds specified in Article 23 of the Law "On Mobilization Training and Mobilization", and the TCC responded by letter to lawyer's request.
Under these circumstances, the Supreme Court affirms the correctness of the conclusion of the courts of previous instances that there are no grounds for satisfying the claim.
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