The TCC fined a man with a deferred fine because the post office did not deliver the summons at the place of registration – what did court decide?

The Third Administrative Court of Appeal ruled that there was no violation of the mobilization law if a person liable for military service was not properly notified of a call to the CMC. Accordingly, the court canceled the fine imposed on a man who was registered with the MCC and had a deferment, but was still declared a violator.

Circumstances of the case

The man went to court, demanding to cancel the decision of the TCC to impose a fine of UAH 17 thousand on him for allegedly violating mobilization legislation (Part 3 of Article 210-1 of the Code of Administrative Offenses). He insisted that the decision was illegal, as there was no evidence of his guilt – no video, photo or other evidence of the offense. He also noted that he had an official deferral from conscription during mobilization.

On January 20, 2025, the Novoukrainsky District Court of Kirovohrad Oblast dismissed the claim. The man disagreed with this decision and filed an appeal.

The panel of judges of the Court of Appeal recognized that the court of first instance had not taken into account several important circumstances.

Improper notification

According to clause 41 of Procedure No. 560, the proper confirmation of the notification of a reservist or person liable for military service about a call to the CMC is, among other things, the following:

the day of marking in the mail message of refusal to receive the mail or the day of marking the absence of the person at the address of the person’s residence, which was reported by the person to the TCC when specifying his/her credentials, or at the address of the declared/registered residence, unless the person has notified the TCC of another address of residence.

The summons was sent to the man by mail. Thus, the day the postal message is marked as absent from the declared/registered place of residence is the proper confirmation of the plaintiff’s notification of the summons to the TCC. The copy of the envelope and the certificate of reasons for return/delivery show that the mail was returned to the sender with a note on the absence of the addressee at the specified address, namely Korobchyne village (served by a mobile branch at the address and schedule of services in the settlement). On the certificate of return reasons, there is a stamp «Ukrposhta» from which it is impossible to establish the date, but according to the provided copy of the tracking status check, the date is 26.11.2024.

The court took into account that the postal item was received on 11/21/2024 in Kropyvnytskyi, arrived at the branch 26014 village. Korobchyne – on 11/22/2024 (Friday); return to the sender – «absence of the addressee at the specified address» 11/26/2024 (Tuesday). During the consideration of the case, we analyzed the reduced work schedule of the mobile branch No. 26014.

Thus, the Court of Appeal noted that the mail was returned due to the absence of the addressee at the specified address, but no evidence of the plaintiff’s awareness of the mail was provided, and the court did not establish it (taking into account the work schedule of the branch). The court of first instance disregarded these circumstances, failing to find out whether the plaintiff had been properly notified of the summons to the TCC.

Thus, the court finds that since the plaintiff was not properly notified of the summons to the TCC department, he did not violate para. 1 para. 1 and para. 12 para. 3 Art. 22 of the Law «On Mobilization Preparation and Mobilization». Therefore, the MCC had no legal grounds to issue a resolution on an administrative offense.

Data exchange between state registers

In addition, according to Notes to Article 210 of the Code of Administrative OffensesThe provisions of Articles 210, 210-1 of the Code do not apply if the holder of the Unified State Register of Conscripts, Persons Liable for Military Service and Reservists can obtain personal data of a conscript, person liable for military service or reservist through electronic information interaction with other information and communication systems, registers (including public registers), databases (banks), the holders (managers, administrators) of which are state bodies.

In other words, if the Ministry of Defense can obtain information about a person by synchronizing with other state electronic registers, the person cannot be held liable for failure to provide such information.

The case file revealed that the plaintiff was summoned to the TCC on December 1, 2024 to clarify his credentials. The said summons is not primary, since the plaintiff is registered with the military enlistment office in Novomyrhorod, has a number in the register «Oberih», as evidenced by the available military registration document from the mobile application «Reserve+».

Moreover, the defendant knew for certain that the plaintiff had a postponement of the call-up for military service during mobilization on the basis of clause 3, paragraph 3, part 3, Article 23 of the Law «On Mobilization Training and Mobilization».

Decision of the Court of Appeal

Given these circumstances, the plaintiff’s actions do not constitute an administrative offense. The court of first instance failed to clarify all the circumstances of the case. Therefore, the Court of Appeal overturned the decision of the court of first instance and the decision of the TCC to impose a fine. In addition, the court collected a court fee in the amount of UAH 3,028 in favor of the man at the expense of the TCC’s budgetary allocations.

Source: Judicial and legal newspaper