The mere refusal of a person to receive a summons for military service does not constitute a violation of the legislation on defense, mobilization training and mobilization, in particular Part 1 of Article 22 of Law No. 3543-XII, as erroneously stated in the protocol on the administrative offense. This was indicated in his resolution dated February 18, 2025, the Sixth Administrative Court of Appeal in case No. 756/10897/24.
The appellate court also emphasized that the CCC did not prove with any evidence either the fact of the formation of the summons, or the attempt to serve it on the plaintiff, or the fact of his refusal to receive it. In addition, the court additionally draws attention to the impossibility of establishing the type of summons, the refusal to receive of which the CCC indicates, since the norms of the current legislation do not contain a definition of this type of summons as “combat”.
The circumstances of the case
The man asked the court to declare the CCC's resolution unlawful and to cancel it. Thus, in August 2024, the CCC drew up a report under Part 3 of Article 210-1 of the Code of Administrative Offenses against the plaintiff for the fact that on August 9, 2024, he violated the requirements of Part 1 of Article 22 of the Law "On Mobilization Training and Mobilization" because he refused the "combat" summons for August 9, 2024. On August 15, the head of the CCC issued a resolution on a fine.
The Obolonsky District Court of Kyiv rejected the claim by a decision of December 26, 2024. The man filed an appeal.
What did the appeals court decide?
The panel of judges of the Court of Appeals, in adopting this resolution, proceeds from the following.
As can be seen from the case materials, the contested resolution brought the plaintiff to administrative liability under Part 3 of Article 210-1 of the Code of Administrative Offenses, which provides that violation of the legislation on defense, mobilization training, and mobilization during a special period entails the imposition of a fine.
According to the protocol and the contested resolution, the CCC indicates a violation by the plaintiff of Part 1 of Article 22 of the Law "On Mobilization Training and Mobilization" No. 3543-XII due to the fact that the plaintiff refused to receive a "combat" summons for 9.08.2024/XNUMX/XNUMX.
The Court notes that according to Part 1 of Article 22 of Law No. 3543-XII, citizens are obliged to:
- to appear upon summons at the CCC at the time and place specified in the summons, for the registration of those liable for military service or reservists, determining their assignment for a special period, and referral for a medical examination;
- provide, in accordance with the established procedure, during mobilization, buildings, structures, vehicles and other property of which they are the owners, to the Armed Forces of Ukraine, other military formations, and civil defense forces, with subsequent reimbursement by the state of their value in accordance with the procedure established by law;
- undergo a medical examination to determine suitability.
Neither the case materials, nor the aforementioned protocol and the contested resolution contain information that the plaintiff did not appear at the summons of the CCC, did not comply with the decision to undergo a medical examination to determine suitability, nor did he provide buildings, structures, vehicles or other property in accordance with the established procedure.
The refusal of a person to receive a summons does not constitute a violation of the obligations provided for in the said norm. Thus, the plaintiff's reference to a violation of Part 1 of Article 22 of Law No. 3543-XII is groundless.
The case materials, the protocol, or the appealed resolution do not contain information about the plaintiff's violation of any other norms of the legislation on defense, mobilization training, and mobilization for the purposes of holding the plaintiff liable under Article 210-1 of the Code of Administrative Offenses.
In accordance with Part 3 of Article 22 of Law No. 3543-XII, in the event of receiving a summons to the CCC, a citizen is obliged to appear at the place and time specified therein.
According to paragraphs 39, 88-90 of the Procedure for the Conscription of Citizens, approved by Resolution of the Cabinet of Ministers of Ukraine No. 560, based on the results of a medical examination and professional and psychological selection, reservists and conscripts who are subject to conscription are given a summons for conscription and dispatch to places of military service under their personal signature at the CCC.
In district (city) CCCs, reservists and those liable for military service are served with summonses by military personnel or employees of such centers.
Reservists and conscripts who have received a summons shall arrive at the time and place specified in the summons for dispatch to the military unit (institution). In case of refusal to receive such a summons or failure to comply with the requirements for arrival for dispatch to the military unit (institution) at the time and place specified in the summons, such persons shall be liable in accordance with the Criminal Code.
The analysis of the above shows that reservists and those liable for military service are obliged to appear at the place and time specified in the summons. In turn, the panel of judges emphasizes that the norms of the current legislation do not contain provisions on the obligation of a person to receive a summons to the relevant CCC and SP.
Thus, the mere refusal of a person to receive a summons for military service does not constitute a violation of the legislation on defense, mobilization training and mobilization, in particular Part 1 of Article 22 of Law No. 3543-XII, as erroneously stated in the protocol.
The appellate court also emphasizes that the defendant did not prove with any evidence either the fact of the formation of the summons, nor the attempt to serve it on the plaintiff, nor the fact of his refusal to receive it.
In light of the above, the panel of judges draws attention to the fact that in the protocol the plaintiff indicated his "refusal to get into the car", emphasizing that he was not avoiding military service, but was asking for it to be replaced with alternative (civilian) service.
In accordance with paragraphs 30, 40, 47 of Order No. 560, the summons is formed using the Unified State Register of Conscripts, Military Enlisted Persons and Reservists or the summons form is filled out by a representative of the CCC or its department. The head of the CCC or its department affixes the CEP to the summons or personally signs the summons and seals it with a government seal.
During the service of the summons, photo and video recording is carried out using technical devices and means of photo and video recording by a representative of the CCC or a police officer.
In case of refusal to receive a summons by a representative authorized to serve summons, a refusal act is drawn up, which is signed by at least two members of the notification group. The refusal act is announced to the citizen and registered in the CCC.
According to subparagraph 1 of paragraph 41 of Order No. 560, proper confirmation of notification of a reservist or a person subject to military service about a call-up is: in the case of delivery of a summons - a personal signature on receipt of the summons, a video recording of the delivery of the summons or familiarization with its contents, including a video recording of the act of refusal to receive the summons, as well as a video recording of the reservist or person subject to military service's refusal to communicate with the person authorized to deliver the summons.
Thus, the evidence confirming the refusal to receive the summons is the act of refusal to receive the summons and the corresponding video recording.
The panel of judges emphasizes that neither the summons itself, nor the act of refusal to receive it, nor the corresponding video recording was provided by the defendant.
Taking into account the above, the panel of judges concluded that the defendant's reference to the plaintiff's refusal to receive the summons is unfounded.
The appellate court also draws attention to the impossibility of establishing the type of summons the defendant indicates to refuse to receive, since the norms of current legislation do not contain a definition of this type of summons as "combat".
Given the above, the conclusions of the CCC regarding the presence of an administrative offense in the plaintiff's actions were not confirmed during the trial, and therefore the latter's holding to account under the contested resolution is unlawful.
At the same time, the appellate court does not assess the plaintiff's arguments regarding his right to choose alternative (non-military) service, since the specified issue is not the subject of this dispute and is not covered by the subject of evidence in this case.
Thus, the panel of judges of the court of appeal concluded that the court of first instance made an erroneous decision to refuse to satisfy the claim. The court of appeal overturned the decision of the Obolonskyi District Court of Kyiv and adopted a new court decision, by which it satisfied the claim for recognition as unlawful and cancellation of the resolution in the case of an administrative offense. It recognized as unlawful and overturned the resolution of the CCC.
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