The Supreme Court's position on the irreversibility of illegal mobilization does not automatically apply to all cases where the mobilization conscription procedure is challenged. This was explained by the Fifth Administrative Court of Appeal, considering case 400/11496/24.
In this case, the appellate court upheld the decision of the court of first instance, which found the order of the head of the CCC to call up a reserved man to be unlawful and canceled it, and obliged the military unit to remove him from the lists of personnel.
The military unit in its appeal argued that illegal conscription is irreversible, citing the well-known conclusions of the Supreme Court in its ruling of February 5, 2025 in case 160/2592/23.
However, the panel of judges of the Court of Appeal did not take these references into account, since each case has its own characteristics and individual circumstances, which are established on the basis of evidence.
As the Fifth Administrative Court of Appeal noted in its decision, in the case considered by the Supreme Court, the main emphasis of the plaintiff-serviceman was on the fact that he did not undergo the VLK. But in case 400/11496/24, the subject of the trial was not the investigation of the procedure for conducting the VLK or other actions or inaction of the district CCC, that is, the cases are not identical.
"At the same time, the conclusions of the Supreme Court on recognizing the conscription procedure as irreversible are not exemplary, but relate to the specific case of a serviceman who, almost a year later, appealed to the court with a claim for not passing the military service, and therefore the panel of judges sees no reason to take such references into account.", the appeals court noted.
The circumstances of the case
The man filed a lawsuit against the CCC and the military unit, requesting that the order of the head of the CCC regarding the conscription and referral for military service upon mobilization to the military unit be declared unlawful and canceled, and that the military unit be ordered to remove him from the personnel lists.
He indicated that in February 2013 he was hired as a mechanic at LLC. According to the order of the Ministry of Agrarian Policy, LLC was recognized as critically important for the functioning of the economy.
The LLC applied to the Ministry of Agrarian Policy with a proposal to provide a deferral to employees liable for military service according to the list. The plaintiff was included in the specified list. The list was approved by a letter from the Ministry of Defense, and by order of the Ministry of Economy, the LLC employees were reserved according to the list approved by the Ministry of Defense.
According to the result of the reservation upon the LLC's application, generated by the "Diya" Portal, the plaintiff was booked until 22.07.2025/XNUMX/XNUMX.
The LLC sent a notification to the CCC, where the plaintiff is registered, about his reservation on the form for enrollment in special military registration. The specified notification was sent to the CCC address by registered mail, which was delivered on 27.08.2024/XNUMX/XNUMX.
On November 13, 2024, the LLC received an order from the head of the CCC to notify employees subject to military service of their call-up to the CCC. On November 19, the plaintiff arrived at the CCC to clarify his military registration data. He was then deemed fit, drafted, and sent to perform military service from November 19.11.2024, XNUMX.
Thus, at the time the head of the CCC issued the order, the plaintiff had a valid deferral until May 27.05.2025, XNUMX and a reservation.
First instance court decision
By the decision of the Mykolaiv District Administrative Court of February 28, 2025, the claim was granted.
The court proceeded from the fact that the plaintiff cannot be held responsible for the appropriateness of informing the defendant about the postponement, since such a procedure depends on communication between the enterprise where the plaintiff works, and not on the plaintiff's actions, and therefore concluded that the order of the head of the CCC is unlawful and subject to cancellation.
At the same time, he pointed out that although the Law "On Military Duty and Military Service" does not provide for such a ground for exemption from military service as illegal mobilization, nevertheless, military service is a direct consequence of the mobilization order, and therefore, in order to effectively protect the plaintiff's violated right and fully restore it, the military unit, represented by the commander of this military unit, will be obliged to make a decision to exempt the plaintiff from military service and remove him from the lists of personnel.
The military unit filed an appeal, stating that the order of the head of the CCC, as well as the order of the commander of the military unit, are acts of individual action. In addition, the current legislation does not provide grounds for the dismissal of a serviceman and subsequent exclusion from the lists of the unit based on a court decision (if this is not a corresponding sentence), or due to an illegal conscription by the CCC.
What did the appeals court decide?
The court cited the provisions of the legislation, in particular, that the CCC, based on the decision on the reservation of military conscripts, shall, within a period of no more than 5 working days from the date of its receipt, place such a conscript on special military registration with the entry of information on the granted deferment in the Unified State Register of Conscripts, Conscripts and Reservists. From the moment the conscript is transferred to special military registration, he is considered reserved and is granted a deferment for a specified period.
Thus, a conscript is considered reserved from the moment he is transferred to special military registration for the duration of the deferment.
In accordance with Regulation No. 154, district CCCs issue deferrals for those liable for military service and reservists and verify the grounds for their provision, and maintain special records of those liable for military service. The head of the CCC is obliged to organize, among other things, checks on the status of reservations for those liable for military service.
Therefore, the CCC authorities are obliged to verify and possess information about booked persons in order to prevent unlawful actions against the person.
The court of first instance rightly pointed out that at the time of the disputed order of the head of the CCC, the plaintiff had a deferment until July 22.07.2025, XNUMX inclusive, and therefore was not subject to conscription. However, the CCC did not take appropriate measures to clarify such circumstances.
At the same time, taking into account the above and the fact that the LLC sent a letter to the CCC regarding the notification of the reservation according to the list, among which is the plaintiff, which was served on the defendant on August 27.08.2024, XNUMX, the CCC had to check whether the plaintiff had the right to a postponement.
Therefore, information about the plaintiff's deferment was brought to the CCC in the manner prescribed by law (by sending a notification of the plaintiff's reservation) and, in addition, such information was available in the Unified State Register of Conscripts, Military Enlisted Persons and Reservists, to which employees of district CCCs have full access, but the CCC did not verify such information.
Moreover, since the plaintiff was additionally booked through the Diya Portal, in accordance with Procedure No. 76 (as amended by the Cabinet of Ministers resolution, which was in effect at the time of the plaintiff's booking), the plaintiff was automatically transferred by the system to special military registration for the duration of the deferment.
Considering the above, the panel of judges of the appellate court agrees with the conclusion of the court of first instance that the CCC should have verified whether the plaintiff had the right to a deferral, and the plaintiff in any case cannot be held responsible for the appropriateness of bringing information to the CCC, since such a procedure depends on communication between the enterprise where the plaintiff works, and not on the actions of the plaintiff.
Regarding the possibility of appealing orders of the CCC and commanders of military units as acts of individual action
At the same time, the appellant in the appeal does not mention the procedure for notifying or verifying the availability of a reservation for a person liable for military service, but instead notes that the individual act challenged by the plaintiff exhausts its effect with the fact of execution, that is, the plaintiff's call-up for further military service during mobilization, and therefore the cancellation of the relevant order in the unit is not an independent basis for changing the plaintiff's status.
The panel of judges notes on this occasion that despite the fact that after the issuance of the contested order, such an order exhausted its effect with implementation, the plaintiff is not deprived of the right to judicially challenge an individual act of a subject of public authority that directly affects his rights and legitimate interests.
The right to appeal an individual act of a subject of public authority is granted to the person to whom this act was issued or whose rights, freedoms and interests it directly affects. This corresponds to the fact that the protection by an administrative court is subject to the actually violated right of a person in public legal relations with a subject of public authority in the exercise of his or her administrative functions defined by current legislation, and not the restoration of legality and order in public legal relations.
A similar legal conclusion was expressed by the Grand Chamber of the Supreme Court, in particular, in the resolutions of October 6, 2021 in case No. 9901/26/21, November 03, 2021 in case No. 9901/226/21, February 02, 2022 in case No. 9901/256/21, March 16, 2023 in case No. 9901/494/21, April 06, 2023 in case No. 990/152/22, September 14, 2023 in case No. 990/73/23.
The possibility of appealing individual acts does not undermine the very essence of the right of access to court, since these acts can be challenged in court by their addressees, that is, by the subjects for whom the relevant acts create rights and/or obligations. That is, individual legal acts can be the subject of an appeal in an administrative case.
Therefore, in the event of an authority figure, in this case the head of the CCC issuing an order to call the plaintiff up for military service upon mobilization, the plaintiff, taking into account the obvious illegality of issuing such an order (the fact that he has a deferral from military service), has the legal right to apply to the court with a claim to declare the order illegal and cancel it in the part that directly concerns the plaintiff, which he (the plaintiff) actually did in this case, and therefore the application of legal norms regarding the appeal of individual legal acts is erroneous, and therefore the appellant's arguments in this part are unfounded.
Taking into account the above, the panel of judges concludes that such a method of judicial protection as the recognition of the contested order as unlawful and the cancellation of it is effective and appropriate, does not lead to a violation of public legal relations regarding the passage of military service by citizens upon mobilization, but on the contrary allows preventing future violations of the rights and legitimate interests of the plaintiff by the district CCC and the SP, and therefore the order of the head of the CCC regarding the plaintiff's conscription is unlawful and subject to cancellation, which is correctly stated by the court of first instance.
Regarding the demands to exclude from the lists of personnel and references to the position of the Supreme Court regarding the irreversibility of illegal mobilization
Regarding the plaintiff's claim regarding the obligation of the military unit to exclude him from the lists of personnel of the military unit, the panel of judges notes that the violation of the plaintiff's rights occurred as a result of the issuance of an unlawful order by the head of the CCC.
Illegal mobilization may violate citizens’ rights, including the right to liberty and the right to choose the form of service. Protection of these rights may include recourse to the courts, as well as the right to be discharged from military service if the illegal mobilization is a consequence of a violation of the law.
Thus, the court of first instance rightly drew attention to the fact that although the Law "On Military Duty and Military Service" does not provide for such a ground for exemption from military service as illegal mobilization, nevertheless, military service is a direct consequence of the mobilization order, and therefore, in order to effectively protect the violated right of the plaintiff and fully restore it, the military unit, represented by the commander of this military unit, will be obliged to make a decision to exempt the plaintiff from military service and remove him from the lists of personnel.
The panel of judges agrees with the court of first instance that the adoption by the Ministry of Economy of the order on the reservation of military servicemen for LLC, which, among other things, booked the plaintiff, is due to the need to ensure the fulfillment of the established mobilization tasks (orders) in a special period. That is, the relevant order on the reservation of the plaintiff was adopted in order to ensure the stable operation of the LLC, which is classified as a critically important enterprise, in order to preserve the company's staff of qualified labor, and therefore the appellant's arguments that the method of judicial protection chosen by the plaintiff is ineffective and inappropriate are unfounded.
At the same time, the plaintiff rightly pointed out that the current legislation does not contain provisions that would allow a subject of government authority to act at his own discretion, issue acts of individual action that are obviously unlawful, and does not allow mobilizing an employee who has a deferment from military service and sending him to a military unit.
Regarding the appellant's arguments that the procedure for conscripting a person liable for military service upon mobilization is irreversible, that is, one that has already taken place, and recognizing the conscription procedure as unlawful will not result in the restoration of the previous position of the person who was conscripted for military service, with reference to the conclusions of the Supreme Court expressed in the resolution of 5.02.2025/160/2592 in case No. 23/XNUMX/XNUMX, the panel of judges does not take it into account, since each case has its own characteristics, its own individual circumstances, which are established on the basis of evidence.
In the case referred to by the appellant, the main emphasis of the plaintiff-military man was on the fact that he did not undergo the VLK, in the above-mentioned case, the plaintiff did not challenge the act of individual action (the order of the head of the district CCC and SP on the mobilization of the plaintiff), but the actions of the CCC regarding the violation committed during the procedure for conducting the VLK. The plaintiff challenged the act of individual action in the part that directly concerns him, the subject of the court proceedings in this case was not the investigation of the procedure for conducting the VLK and/or other actions (inaction) of the district CCC and SP, i.e. the cases are not identical.
At the same time, the conclusions of the Supreme Court on recognizing the conscription procedure as irreversible are not exemplary, but relate to the specific case of a serviceman who, almost a year later, appealed to the court with a claim for not passing the military service, and therefore the panel of judges sees no reason to take into account such references of the appellant.
Therefore, the court of first instance reached a well-founded and lawful conclusion that the claims were satisfied in full, and the methods of judicial protection chosen by the plaintiff are effective, appropriate and aimed at the full and final restoration of the rights and legitimate interests violated by the subject of public authority.
