Employer’s reservation of an employee is not a guarantee against mobilization — under certain conditions. This was the decision of the Transcarpathian Regional Administrative Court during the case.
The court states that a person liable for military service who has the right to postpone mobilization must notify the Military Commissariat of the grounds for this. Otherwise, he may be mobilized. The postponement of military service is realized by persons liable for military service through active actions of the relevant registration in the CCC. This right can be exercised only before the start of service (in other words, if you have been mobilized and are in service, you cannot apply for a postponement).
The court rejected the plaintiff’s claim because, having the right to deferment, he failed to notify the MCC in time and thus did not use his legal opportunity. However, the court’s decision states that the General Staff of the Armed Forces of Ukraine was instructed to organize the delivery of the order to book to the relevant TCCs within three days.
- The man sued the border military unit. He asked to cancel the order of mobilization, his enrollment in the personnel and other relevant documents.
- The lawsuit says that on February 8, 2024, he wanted to cross the border legally, but was detained and taken to the TCC, where he was sent to a medical commission.
- During the medical examination, the plaintiff’s health was allegedly not examined, and his complaints about being registered as unfit for service were not taken into account.
- Moreover, the plaintiff was booked by the company.
- Nevertheless, after a medical examination, the plaintiff was taken to a military unit for military service.
The court found that on February 11, 2024, the plaintiff received a summons with an obligation to appear before the MEC. At the same time, he was recognized by the MEC as fit for service. The plaintiff received a mobilization notice, which he refused to sign. On the same day, February 11, he was sent for military service in a military unit. On February 14, 2024, he was enlisted.
The plaintiff also claims that he was booked and therefore had grounds for a postponement of conscription. The company LLC «F» is recognized as a critical enterprise. Its 17 employees, along with the plaintiff, were on the submitted list for reservation. The General Staff of the Armed Forces of Ukraine approved the list.
By order of the Ministry of Economy, the company’s employees were booked according to the submitted list. The respective employees were granted a deferral from conscription until February 16, 2024 (as a reminder, mobilization took place on February 11). The letter from the Ministry of Economy obliged LLC «F» to issue an extract from this order to the reserved employees to confirm the deferral. The General Staff was instructed to communicate the order to the MCC within 3 days.
Therefore, it was established that as of the day of the call-up, the plaintiff was duly booked with LLC «F» and was entitled to a deferral until February 16, 2024.
According to the court, the defendants claim that the plaintiff did not inform the TCC employees of his right to deferment, did not provide proof of booking, and there was no data on his status in the «Oberig» system.
The court noted that conscripts, persons liable for military service and reservists who have not updated their information in the Unified State Register in person within 7 days from the date of the changes must come with a passport and credentials to the relevant TCC to be registered for military service, deregistered or to make changes to their credentials.
Conscripts, persons liable for military service and reservists, among others, must personally report changes in their personal data within seven days and provide the relevant authorities with documents confirming the right to deferment.
In other words, reservists who have the right to postpone military service during mobilization are obliged to timely notify the body in which they are registered for military service of the existence of such grounds. Thus, the right to deferment is exercised by the person liable for military service through active actions to register this right. At the same time, such right can be exercised only until the moment when he/she acquires the status of a serviceman.
With regard to the claim for recognition as unlawful and cancellation of the order of the Head of the TCC of the border detachment of the State Border Guard Service of 14.02.2024 on enrollment in military service, enrollment in the lists of personnel, the court notes the following.
Enrollment in the lists of the State Border Guard Service is carried out by an order on the personnel, usually on the day of arrival at the unit. The court considers that there were no grounds for not issuing an order to enroll the plaintiff in the unit’s personnel lists.
As for the plaintiff’s health condition, the court notes that at the time of the dispute, the plaintiff was «called up for military service as a private, and even more so during the period of martial law».
«Consequently, the mark in the military ticket on the plaintiff’s unfitness for military service under gr. I of Article 10 «c» of the Schedule of Diseases cannot be a proper basis for recognizing the decision to mobilize as unlawful».
Based on the results of the administrative case, the court found that the defendants’ actions were unlawful and dismissed the claim.
Source: «Judicial and legal newspaper»
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