If a man had the right to deferment, but did not take advantage of the opportunity to exercise this right and did not issue it in the appropriate way, then he cannot appeal the actions of the TCC on his mobilization. This was pointed out by the Supreme Court as part of the panel of judges of the Cassation Administrative Court in the resolution dated October 1, 2024 in the case No. 200/4189/22.
The circumstances of the case
In August 2022, the history and law teacher of the educational complex filed a lawsuit against the TCC, in which he asked the court to declare the defendant's actions regarding his draft for military service during mobilization and deployment to the military unit illegal and to oblige the defendant to release him into the reserve .
He referred to the fact that during the mobilization on March 7, 2022, the Central Committee called him up for military service. At the same time, he noted that he is a teacher of history and law at the educational complex "ZOSH I-III degrees No. 3" with a full weekly workload of 18 hours.
In this context, the plaintiff emphasized that for such employees, Article 23 of the Law "On Mobilization Training and Mobilization" provides for a postponement of the draft.
The court decision rejected the claim. The courts assumed that the man had the right to postponement based on the law on mobilization, however, in order to apply this norm, neither the plaintiff nor the educational institution notified the TCC about the existence of such a right, therefore the defendant did not have information about the existence of grounds for postponement.
Therefore, the order of mobilization was not violated and the latter voluntarily arrived at the TCC for mobilization.
In addition, the courts pointed out that the decision on mobilization and conscription is an act of individual action, an act of one-time use, which, as of the time of the decision of the case, had exhausted its effect due to the mobilization of the plaintiff and sending him for military service.
Against this background, the courts decided that after mobilization, new legal relations of military service arose, the specifics of which are determined by the Law "On Military Duty and Military Service" and the Regulation on the Military Service of Ukrainian Citizens in the Armed Forces No. 1153/2008. Decisions on conscription and assignment to a military unit have already been implemented, and therefore their cancellation without the adoption of a corresponding decision on dismissal from military service will not restore the initial state and will not lead to the protection of the plaintiff's rights and interests, which he requests in the lawsuit.
In addition, as the courts found out, before calling up the plaintiff on March 7, 2022, his personality was studied (desire to do military service, suitability for military service in wartime), during which it was found that the plaintiff is patriotic , expressed a desire to serve and participate in the defense of Ukraine in the ranks of the Armed Forces.
In addition, he expressed his desire to do military service together with his own brother.
Taking into account the wishes of the plaintiff, the absence of reasons that would make it impossible for him to complete military service together with his brother, he was called up for mobilization to the ranks of the Armed Forces of Ukraine, and subsequently sent for military service to the military unit of the Territorial Defense Forces of the Armed Forces of Ukraine.
A personal case was not opened against the plaintiff, as this is not provided for by the legislation due to the fact that the latter had not previously served in the Armed Forces under a contract.
According to the letter of the Department of Education of the Dobropil City Council dated March 3, 2023, information about the plaintiff was not submitted to the TCC for the purpose of his reservation.
The position of the Supreme Court
At the time of conscription for military service (March 7, 2022), the man had the right to receive a deferment in accordance with paragraph 3 of part 3 of Article 23 of the Law on Mobilization.
In the context of the arguments of the cassation appeal, the Supreme Court draws attention to the fact that the right to postponement must be exercised by the conscript by taking active actions and registering it in an appropriate manner by an authorized body (in particular, the district TCC). At the same time, the realization of such a right can be carried out only until the moment when he acquires the status of a military serviceman.
The first and appellate courts correctly noted that the case materials do not contain evidence that during the mobilization procedures, the man submitted documents to the TCC to confirm his status as a teacher and the right to postponement.
The TCC, in its turn, pointed out that it had not received any documents that would confirm the existence of grounds for granting the man a deferment, in connection with which the center did not have such information at the time of his mobilization.
The court rejects the certificate of the city council's education department dated July 21, 2022 about confirmation of the place of work provided by the plaintiff, because it was issued by the educational institution 4 months after his enlistment, and therefore could not be taken into account by the TCC during the mobilization on March 7, 2022.
From the analysis of Clause 11 of Regulation No. 154, it can be seen that the registration of a postponement belongs to the powers of district TCCs. They also keep a special record of these persons.
At the same time, in accordance with Part 11 of Article 38 of the Law "On Military Duty and Military Service", conscripts, conscripts, reservists in the event of a change in their marital status, health status, address of place of residence (stay), education, place of work, positions are obliged to personally report such changes within a seven-day period to the relevant authorities where they are on military registration, including in cases determined by the Cabinet of Ministers, through the Central Administrative Office and information and telecommunication systems.
That is, in order to keep special records of conscripts and reservists who have the right to a deferment by district TCCs, the latter are obliged to promptly notify the body in which they are on military records of changes in their marital status, health status , addresses of place of residence (stay), education, place of work and position.
Therefore, the right to a postponement corresponds to the duty of a conscript to comply with the rules of military registration, in particular with regard to timely notification of the body about the current place of work and position.
The Supreme Court already made a similar conclusion under similar circumstances in the resolution dated January 18, 2024 in case No. 280/6033/22.
In this regard, the courts of previous instances reasonably noted the lack of evidence of the petitioner's or the educational complex's appeal to the TCC with the provision of supporting documents.
The Court critically assesses the claimant's statement about the lack of consent to military service during mobilization, since the courts of previous instances did not establish and the case materials do not confirm that the man from the moment of being called up for military service (March 7, 2022) until the filing of the lawsuit on August 25 In 2022, he committed actions that would indicate his disagreement with conscription and military service.
At the same time, the presence of the plaintiff's consent to mobilization cannot indicate a violation of TCC provisions of the law on mobilization.
The factual circumstances of the case and the legal regulation of disputed legal relations allow the Court to come to the conclusion that the plaintiff did not take advantage of the opportunity to exercise the right to adjournment and to process it in an appropriate manner.
On this basis, the Supreme Court agrees with the conclusion of the first and appellate courts that the contested actions of the TCC were committed legally and there are no grounds for recognizing them as illegal.
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