Court obliged The TCC considered the application for postponement and indicated that the obligation to "notify in person" does not mean "arrive in person", and that the law in force at the time of the application should be applied.
Personal submission of an application for postponement to the TCC by military servicemen is also considered to be sent by means of postal communication. The obligation to "notify in person" does not mean to "arrive in person". This was pointed out by the Ternopil District Administrative Court in its decision dated August 5, 2024.
We would like to remind you that the current Procedure for conducting conscription for military service, approved by the Cabinet of Ministers Resolution No. 560, stipulates that, if there are grounds for receiving a deferment from conscription, conscripts must personally submit an application to the head of the commission of the district (city) TCC. Prior to that, the legislation also did not define the obligation to come personally to the TCC, the court noted in this case.
Since the TCC, in its response to the lawsuit of the man who received neither the approval of the postponement nor the refusal, did not question the fact that the application for the postponement was sent to the conscript personally, the court came to the conclusion that the plaintiff, having personally sent the application by mail and documents to resolve the issue of granting a deferment from the conscription followed the procedure of their personal submission (referral).
Also, the TCC in this case referred to changes in the legislation on mobilization, however, as the court pointed out, the plaintiff's application was submitted and received by the TCC long before the changes were made, and therefore the realization of a person's right must be carried out according to the norms in force at the time of the expression of the will of such a person in the form specific actions. As a general rule, the started process of exercising the right must be completed according to the law in force at the time of the start of such a process.
The circumstances of the case
The man asked to declare the TCC's inaction in not making a decision as a result of consideration of his application for deferment from the draft, submitted on February 29, 2024, as illegal, and also to oblige it to be considered.
He indicated that in February he applied to the TCC with an application for a deferment on the grounds that he provides constant care for his uncle, who is a person with a disability of the 1st group. There are no other able-bodied persons who could provide adequate care for him. I added the necessary documents confirming these circumstances to the application and sent the appeal by mail.
In response to the statement of the TCC with reference to Clause 8 of the Rules of military registration of conscripts, conscripts and reservists, he noted that the applicant is obliged to personally provide documents confirming the right to postponement; the submitted application does not correspond to the specified model, it is filled out by the applicant himself, it is also necessary to attach a copy of the military registration document. It is recommended to personally contact the TCC, where the plaintiff is on military registration, with the originals of supporting documents to resolve the issue.
The plaintiff's representative pointed out that the TCC only provided a reply letter without making a decision on the merits of the issue, thereby committing illegal inaction.
In its response, the TCC indicated that by the order of the head of the TCC dated February 15.02.2024, XNUMX, a commission was appointed to verify the legality of granting postponements for mobilization. The commission meets daily and considers applications personally submitted by conscripts regarding the granting of a deferment. Therefore, the plaintiff had to personally come to the Sixth Department with a military registration document to write an application, review it at the commission, draw up a certificate of deferment and enter data into the "Oberig" electronic register and paste the VIN code.
Since the plaintiff's application has been considered and an answer has been provided, he considers that there is no inaction on the part of the defendant.
With regard to the mandatory requirement to consider the application dated February 29.02.2024, XNUMX, with reference to the algorithm indicated above, it indicates that the decision to grant a postponement of the draft during mobilization is made by the relevant commission with record keeping.
Currently, amendments have been made to the legislation that regulates the issue of mobilization, in particular, the Law "On Amendments to Certain Legislative Acts of Ukraine Regarding Certain Issues of Military Service, Mobilization, and Military Registration" dated April 11.04.2024, 3633 No. 16.05.2024-IX; the Cabinet of Ministers Resolution No. 560 of 20.05.2024/XNUMX/XNUMX approved the Procedure for conscripting citizens for military service during mobilization, for a special period, for the implementation of which a commission was created by order of the Ternopil District Military Administration of XNUMX/XNUMX/XNUMX on the issue of deferment of conscription to conscripts from representatives Ternopil District Military Administration and TCC.
The plaintiff, for his part, pointed out that the possibility of personally submitting an application by sending such a postal communication to the recipient of such an application is not restricted or prohibited by anyone or anything.
Regarding the objections of the TCC with reference to the change in the registration procedure and the granting of a postponement of conscription for military service during mobilization, it indicates that the plaintiff's application dated 29.02.2024 was received by the defendant as early as 4.03.2024, long before the introduction of legislative changes, in the context of the application of the principle of irreversibility during the period of validity of the law, the realization of a person's right must be carried out according to the norms in force at the time of expression of the will of such a person in the form of specific actions, the started process of realization of the right, as a general rule, must be completed according to the law in force at the time of the start of such a process. Considers that the claims for recognition of illegal actions/inactions and for the defendant's obligation to consider the claimant's application for a postponement and to make an appropriate decision are well-founded, and, accordingly, should be resolved in view of the norms of the law that were in effect at the time of filing such a claim statements
In addition, with regard to the possibility of obtaining a deferment according to the norms of the currently valid edition of the Law "On Mobilization Training and Mobilization", the previous edition in paragraph 12, part 1 of Article 23 determined that conscripts are not subject to conscription for military service during mobilization - guardians of a person with a disability recognized by the court as incapable; persons engaged in permanent care of a person with a disability of the XNUMXst group; persons engaged in the permanent care of a person with a disability of the II group or of a person who, according to the opinion of the medical and social expert commission or the medical and advisory commission of a health care institution, needs constant care, in the absence of other persons who can provide such care.
Identical grounds are contained in the new version of Article 23, taking into account the changes made by Law No. 3633-IX, namely in Clause 14, Part 1, Article 23 of Law No. 3543-XII, and relate to persons engaged in the permanent care of a person with a disability of the I group. The documents that were submitted to the plaintiff's application dated 29.02.2024, among other things, confirm his right to receive a deferral also according to the new wording of Article 23 of the Law.
What the court decided
The subject of the dispute in this case is the admitted inaction regarding the consideration of the plaintiff's application dated 29.02.2024 on granting a deferment from conscription for military service during mobilization on the basis of paragraph 12, part 1, article 23 of Law No. 3543-ХІ.
As established by the court, the plaintiff sent an application by mail to the TCC to grant a deferment as a conscript who is engaged in the permanent care of a person with a disability of the 1st group. The plaintiff attached to the application a list of documents to confirm the circumstances specified in the application (notarized copies).
The defendant, not denying the right to adjournment, in response pointed out the need for the plaintiff to submit the application in person, and not by means of postal communication.
So, in this case No. 500/3047/24, the court had to give an answer to the question of whether it is possible for a conscript to submit an application with relevant documents for a postponement of conscription for military service during mobilization by mail, or whether the current legislation provides for personal arrival to the territorial center of recruitment and social support to submit such an application?
As the court noted, the provisions of Part 11 of Article 38 of Law No. 2232-ХІ determine the obligation, in particular, of conscripts to personally notify in case of changes in family status, health status, address of place of residence or stay, education, place of work, position bodies where they are on military registration.
Identical norms are contained in Order No. 1487, including the Rules for military registration of conscripts, conscripts and reservists (Appendix 2 to the Order).
At the same time, neither the provisions of Law No. 2232-XII nor Order No. 1487 provide for the obligation of a person to personally visit the territorial recruitment and social support center to submit an application and documents for postponement. The obligation to "notify in person" does not mean to "arrive in person".
At the same time, in disputed legal relations, the defendant did not question the fact that the application for postponement was sent to the conscript personally.
In view of the above, the court comes to the conclusion that the plaintiff, having personally sent an application and documents by post to resolve the issue of granting a deferment from military service during mobilization, followed the procedure of their personal submission (addressing).
Having received such a statement with attachments, the defendant, whose competence is to decide on the issue of granting a postponement, after receiving this statement, had to make an appropriate decision as a result of its review on the merits regarding granting a postponement or refusing to grant a postponement.
In the disputed case, the claimant's application by the commission at the TCC regarding the verification of the legality of the granting of deferrals was not considered in substance, and the TCC provided an answer-explanation about the need for the plaintiff's personal arrival to submit the relevant application.
The defendant's letter dated March 7.03.2024, 1668 No. Ц-XNUMX is informative in nature and does not indicate a decision on the merits of the issue raised in the application. The given answer also does not entail any legal consequences, accordingly, it does not violate the rights, freedoms and interests of a person, and therefore, it is not an act of individual action that is subject to appeal.
In these legal relations, the subject of authority cannot refrain from making a decision that is within his exclusive competence.
The absence of a properly formalized decision to grant a deferment from military service during mobilization or a reasoned refusal to grant a deferment from military service during mobilization indicates illegal inactivity of the subject of authority.
At the same time, illegal inactivity of a subject of authority should be understood as an external form of behavior (action) of this body or its official, which consists (manifested) in not making a decision or in not carrying out legally significant and mandatory actions for the benefit of interested persons, who on the basis of the law (or other normative and legal regulation) attributed to the competence of the subject of power, were objectively necessary and realistically possible for implementation, but were not actually implemented.
In such circumstances, when the defendant did not consider the application for deferment from conscription during mobilization, since there was no properly formalized decision to grant a deferment or a reasoned refusal to grant a deferment, the defendant committed illegal inaction, which consists in not making a decision .
According to the satisfaction, the derivative claim is also subject. Since the defendant did not properly consider the plaintiff's application and did not make any decision that would generate legal consequences for the plaintiff, in order to protect the plaintiff's violated right, it is necessary to oblige the TCC to consider the application dated February 29.02.2024, XNUMX with the adoption of the appropriate decision.
With regard to the motivation of the defendant with reference to the change in the registration procedure and the granting of a postponement, the court notes that the plaintiff's application dated February 29.02.2024, 4.03.2024 was submitted (sent by mail) and received by the subject of authority on March XNUMX, XNUMX, long before the above-mentioned changes, and therefore the realization of a person's right must be carried out according to the norms in force at the time of the expression of the will of such a person in the form of specific actions (appeal to the subject of authority, etc.). As a general rule, the started process of exercising the right must be completed according to the law in force at the time of the start of such a process.
In the context of the application of the principle of irreversibility of the effect of the law in time, this means that in the event that the legal relationship regarding the exercise of a certain right was initiated during the period of validity of the normative legal act, provided that the person performed specific actions expressing his will regarding the exercise of the right (referred to subject of authority, submitted a complete package of documents, etc.), then the person must have the opportunity to complete the implementation of the corresponding right according to the norms that were in effect at the time of the start of the implementation of the corresponding right, even if they became invalid before the completion of the implementation of the right.
Therefore, the plaintiff's application for a postponement is subject to consideration in view of the legal norms that were in effect at the time of submission of such an application.
In addition, the court notes that the provisions of paragraph 12, part 1 of Article 23 of Law No. 3543-ХІ (as amended at the time of the plaintiff's appeal to the defendant with the relevant application) are reflected in paragraph 14, part 1 of Article 23 of the same of the Law, taking into account the changes made by the Law "On Amendments to Certain Legislative Acts of Ukraine Regarding Certain Issues of Military Service, Mobilization, and Military Registration" dated April 11.04.2024, 3633 No. XNUMX-IX.
Clause 14, Part 1, Article 23 of Law No. 3543-ХІ (as amended at the moment), it is determined that the following conscripts are not subject to conscription for military service during mobilization: family members of the second degree of kinship of a person with a disability I or II groups engaged in constant care for her (no more than one and on the condition that there are no family members of the first degree of consanguinity or if the family members of the first degree of consanguinity themselves need constant care according to the conclusion of the MSEK or LCC of the health care institution). In the absence of family members of the first and second degrees of kinship, the norm of this clause applies to family members of the third degree of kinship of a person with a disability of group I or II.
Therefore, having systematically analyzed the prescriptions of the legislation of Ukraine and given an assessment of the evidence and key circumstances of the case, the court comes to the conviction that the claims are subject to satisfaction in full.
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