Fact of violation of requirements of TCR during mobilization does not exempt person liable for military service from conscription – Supreme Court
The procedure for calling up a citizen liable for military service during mobilization is irreversible, and the recognition of the conscription procedure as unlawful does not entail the dismissal of an illegally mobilized person from military service.
The relevant decision was made by the Administrative Court of Cassation as part of the Supreme Court in a case involving a claim by a serviceman against the district territorial center for recruitment and social support, Censor.NET reports citing the press service of the Supreme Court.
The plaintiff, appealing to the court of first instance to protect his rights, associated their violation with non-compliance with the procedure for his conscription for military service, which consists in the plaintiff's failure to undergo a medical examination during the conscription.
The court of first instance, with which the court of appeal agreed, declared unlawful the actions of the district TCR and SS regarding the plaintiff's call-up for military service during mobilization and ordered the military unit to discharge him from military service, which, according to the courts of both instances, is an appropriate restoration of the plaintiff's violated rights.
However, the Supreme Court emphasized that the restoration of the violated right should take place within the framework of disputed legal relations involving their participants.
At the same time, the obligation of a military unit to discharge a person from military service goes beyond the legal relationship between the district territorial center for recruitment and social support and the plaintiff regarding the procedure for his call-up for military service during mobilization, which is the subject of this case.
"In the disputed legal relations, the plaintiff's right to a proper procedure for his call-up for military service during mobilization was violated. The method of protection of the violated right chosen by the plaintiff, which the courts of both instances subsequently applied as a result of the case, - dismissal from military service - is ineffective, as it does not resolve the legality of the act adopted as a result of the procedure for calling the plaintiff to military service," the Administrative Court of Cassation of the Supreme Court noted.
The Supreme Court ruled that such a method of protecting the violated right would interfere with other legal relations regulated by other legal norms that were not investigated by the courts of previous instances and would create a situation of non-enforcement of the court decision.
The Supreme Court emphasized that the procedure for calling a person liable for military service during mobilization is irreversible, i.e., one that has already taken place, and the recognition of the call-up procedure as unlawful does not entail the restoration of the previous position of the person called up for military service.
Thus, the remedy chosen by the plaintiff does not correspond to the essence of the plaintiff's violated right, and satisfaction of this claim will not lead to the restoration of such a right, so the conclusions of the courts of both instances on the satisfaction of the claims in this part are erroneous.
According to the Supreme Court, the mere fact of failure to undergo a medical examination during conscription is not evidence of the plaintiff's unfitness for military service and is not a ground for dismissal from military service under Article 26 of the Law of Ukraine "On Military Duty and Military Service".
