The Supreme Court announced that it had issued a decision that established that the fact of violation of the CCC of the mobilization procedure does not lead to the need to release an illegally mobilized man from military service. The case in question is No. 160/2592/23, the resolution of which was issued on February 5, 2025.
The essence of the dispute
The man filed a lawsuit against the CCC and the military unit, requesting that the CCC's actions regarding conscription during mobilization be declared unlawful and that the military unit be ordered to release him from military service.
He noted that the CCC had committed unlawful actions regarding the conscription, since the Military Medical Service did not conduct a medical examination of his health. The plaintiff believed that the proper way to protect his violated right was to oblige the military unit to make a decision on his discharge from service.
Decisions of the courts of first and appellate instance
By the decision of the Kharkiv District Administrative Court of May 6.05.2024, 6.08.2024, the man's administrative claim was satisfied. By the decision of the Second Administrative Court of Appeal of August XNUMX, XNUMX, the appeal of the military unit was left unsatisfied, and the decision of the Kharkiv Administrative Administrative Court was left unchanged.
In granting the claim, the court of first instance, which the court of appeal agreed with, proceeded from the fact that the defendant had not provided any evidence of conducting a medical examination of the plaintiff and taking the results of such an examination into account during the conscription. Consequently, there were no legal grounds for concluding that the plaintiff was fit in terms of health, and therefore, accordingly, unlawful actions had been committed.
The courts of both instances noted that the proper restoration of the plaintiff's violated rights is the restoration of the person's position that existed before such a violation of rights, and therefore it is necessary to oblige the military unit to make a decision to release the plaintiff from military service.
The military unit filed a cassation appeal with the Supreme Court. They pointed out that the restoration of the violated right by way of dismissal from military service without determining a legal basis for the dismissal indicates a formality of the court decisions, since the plaintiff's dismissal automatically becomes a consequence of the plaintiff's re-call-up.
According to the military unit, an effective way to protect the plaintiff's violated rights is to conduct a medical examination by a military medical commission and "eliminate the gap" that was made during the plaintiff's conscription in March 2022, and then, if there is a corresponding conclusion from the Military Medical Commission, the defendant will make a decision on dismissal based on the law.
The position of the Supreme Court
The military unit did not appeal the court decisions of the courts of first and appellate instance in respect of the satisfied claims regarding the recognition of the actions of the CCC regarding the plaintiff's conscription as unlawful. In this regard, the court of cassation instance does not review the court decisions in this regard.
Instead, the Supreme Court decided to consider the issue in the context of the man's chosen method of protecting the violated right.
Thus, the plaintiff, applying to the court of first instance for protection, linked the violation of his rights to non-compliance with the procedure for his conscription, which consisted in failing to undergo a medical examination during conscription for military service.
As established by the courts of previous instances, and not contested by the parties, during the plaintiff's conscription, the plaintiff's health suitability was not established, which violated the conscription procedure.
Therefore, in the disputed legal relationship, the plaintiff's right to a proper procedure for his summons is violated.
The method chosen by the plaintiff to protect the violated right, which was subsequently applied by the courts of both instances following the results of the case consideration - dismissal from military service, is, in the opinion of the Supreme Court, ineffective, since it does not decide the legality of the act adopted as a result of the conscription procedure.
The court emphasizes that the restoration of the violated right must take place within the disputed legal relationship, respectively, with the participation of their participants. At the same time, the obligation of the military unit to release the plaintiff from military service goes beyond the legal relationship between the defendant and the plaintiff regarding the procedure for his conscription for military service during mobilization, which is the subject of consideration in this case.
In other words, this method of protecting a violated right will interfere with other legal relations that are regulated by other legal norms that were not examined by courts of previous instances, and will create a situation of unenforceability of the court decision.
In addition, the fact that the plaintiff did not undergo a medical examination during his conscription 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 "On Military Duty and Military Service", which defines an exclusive list of such grounds.
The judges of the CAS of the Supreme Court also pointed out that in the statement of claim, the plaintiff did not mention the state of his health, but instead, at the court hearing, he noted the absence of illnesses that would indicate his possible unfitness for military service.
Thus, the claim for the obligation of the military unit to make a decision on dismissal from military service does not correspond to the essence of the violated right of the plaintiff, and the satisfaction of this claim will not lead to the restoration of such a right, and therefore the conclusions of the courts of both instances in this regard are erroneous.
"In the context of the above, it is worth emphasizing that the procedure for conscripting a person liable for military service during mobilization is irreversible, that is, one that has already taken place, and recognizing the conscription procedure as unlawful does not result in the restoration of the previous status of the person called up for military service." – emphasized the judges of the Supreme Court.
Similarly, the medical examination of the plaintiff by the military medical commission in accordance with the procedure specified in Regulation No. 402 will also not affect the restoration of the plaintiff's violated right in the context of the violated conscription procedure, which is, in fact, the subject of the dispute in this case.
Therefore, the Supreme Court considers the arguments of the cassation appeal regarding the choice of such a method of protection as conducting a medical examination of the plaintiff VLK to eliminate the violation of the draft procedure to be unfounded due to the impossibility of restoring the plaintiff's violated right.
Thus, the Supreme Court partially satisfied the cassation appeal of the military unit, overturned the decision of the Kharkiv District Administrative Court and the resolution of the Second Administrative Court of Appeal regarding the obligation of the military unit to make a decision to dismiss the man from military service.
However, the Supreme Court did not agree with the military unit's idea to "close the loophole" in the violation of the procedure by conducting a medical examination of the man.
Thus, the illegality of the CCC's actions has been established by the courts and upheld by the Supreme Court, but what this man and the military unit should do next is now unclear.
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