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Publication date: 12.04.2024
active and purposeful military lawyer with more than 4 years of experience
TCC and SP ignores the postponement of the booked: can it be appealed in court?
The updated reservation procedure has been in effect for over a year. It enables businesses to apply for the reservation of critical workers and receive a temporary reprieve from mobilization for them. However, in practice, situations often arise when the TCC and SP ignore the booking of such persons and hand them summonses or immediately mobilize them.
The business is challenging it in court, so we can already talk about court practice regarding this category of cases.
LEGAL DEPTH OF THE PROBLEM:
The general rule is that reserved persons are not subject to conscription for military service during mobilization.
Confirmation of the postponement of a conscript is an extract certified by the signature of the manager and the seal of the enterprise. At the same time, in practice, confirmation of deferment in the sense of the TCC and SP is the placing of a person on special military registration. According to the TCC and JV procedure, it is a body that enrolls persons in special registration and can deny the enterprise such enrollment if it finds errors in the decision on booking from the Ministry of Economy.
The booking procedure provides a clear list of such errors:
- incorrect information about the person's name;
- year of birth;
- VOS (profile);
- Name (full or abbreviated);
- the location and code of the enterprise's ERDPOU.
Inaccuracy in civil position, military rank, name of TCC and SP for
the place of registration of the enterprise or conscript is not included in the list of errors and is not a reason to refuse a reservation.At the same time, often the TCC and SP, referring to the need to update military registration data, refuse to recognize the reservation, call it invalid, talk about its cancellation and try to hand out a "combat" summons or immediately mobilize the person.
The legal uncertainty of this issue lies in the fact that the TCC and SP are not the authorized body to cancel the deferment. Such a body is the Ministry of Economy. Moreover, errors in the decision of the Ministry of Economy are not indicated among the reasons for canceling the postponement. Such a reason is primarily the dismissal of a person, and therefore, purely legally, the extract about the reservation remains valid, despite the reluctance of the TCC and the JV to issue a special record.
Proper way to protect the booked
One of the ways to protect what has been reserved is to go to court, in particular, with a demand to declare the actions of the TCC and SP illegal. Several examples of such court decisions are given.
For example: the Dnipropetrovsk District Administrative Court (contested in the appeal) considered the case based on the claim of the person whom the TCC and SP tried to mobilize due to the current reservation. TCC and JV in granting a postponement and oblige it to make a decision on the postponement.
The court agreed with the plaintiff's arguments and emphasized that his rights are subject to protection in such a way as "recognition of the unlawful inaction of the TCC and SP, which consists in not granting a postponement of the draft for mobilization" on the basis of the Law of Ukraine of October 21, 1993 No. 3543-XII "On mobilization training and mobilization".Release of the reserved person from the service
Indicative, but currently unpopular among the courts, is the position of canceling the mobilization order and excluding the booked person from the list of the personnel of the military unit.
Thus, the Seventh Administrative Court of Appeal (not appealed), overturning the decision of the first instance, made several important conclusions, in particular:
- not only a citizen conscripted into military service has an obligation to
notifying the TCC and the JV about the relevant booking, and the TCC and the JV are obliged to check and have information about the booked persons in order to prevent illegal actions against the person;
- an extremely short period of time from the date of issuance of the order on
reservation until the moment of conscription, so the plaintiff had no objective opportunity to provide the TCC and SP with relevant documentary confirmations about granting him a deferment from conscription.
