Publication date: 16.05.2024
The right to a postponement of military service is granted by an authorized body - the CMC and JIC - and must be exercised through active actions.
The right to postpone military service must be exercised by a person liable for military service by taking active steps and registering it with an authorized body, in particular, a district territorial center for rec-ruitment and social support. At the same time, such a right can be exercised only until the moment when he acquires the status of a serviceman.
The aforementioned position was stated by the Supreme Court, which on April 11, 2024 considered the student's cassation appeal against the decision of the Second Administrative Court of Appeal of Sep-tember 28, 2023 in case No. 520/7954/22 in his claim against the military unit of the Ministry of Defense of Ukraine to declare the order unlawful and cancel it.
CIRCUMSTANCES OF THE CASE
The plaintiff is a student of the Kharkiv National University of Civil Engineering and Architecture.
By the decision of the district draft board, the plaintiff was granted a deferment due to his studies and it was stated that he was not called up for military service during mobilization.
In March 2022, the plaintiff applied to the Kharkiv Territorial Defense Office to undergo voluntary training with the subsequent possibility of voluntarily entering into a contract for service. Upon completion of the training, the plaintiff received a certificate of enlistment with a note on the plaintiff's call-up for military service.
Pursuant to the order of the military unit commander, the plaintiff was enrolled in the military unit's per-sonnel list.
The plaintiff stated that he had not voluntarily consented to his mobilization by the military unit com-mander, since he was a conscript, not a person liable for military service, and that his call-up for military service during mobilization by the military unit commander was carried out in violation of the law.
The court of first instance upheld the claim.
The Court of Appeal overturned the decision of the court of first instance and issued a new decision dismissing the claim.
The court proceeded from the fact that the plaintiff, as a conscript, is obliged to inform the relevant authority where he is registered for military service, in particular, about his education. At the same time, the case file does not contain any evidence that during the mobilization procedures, the plaintiff provided the military unit with any documents confirming that he was a student and was entitled to a deferment from the draft.
In addition, the court took into account that the case file did not contain evidence of the plaintiff's forced conscription for military service, the plaintiff voluntarily arrived at one of the locations of the territorial defense of Kharkiv, where he underwent training.
POSITION OF THE SUPREME COURT OF UKRAINE
The Supreme Court upheld the cassation appeal in part, reversed the appealed court decision of the court of appeal, and changed the decision of the court of first instance in terms of the reasons.
The plaintiff, as a student, was entitled to a postponement of conscription for regular military service in accordance with Part 8 of Article 17 of the Law of March 25, 1992 No. 2232-XII "On Military Duty and Military Service".
Evaluating the plaintiff's arguments that the plaintiff, in accordance with Article 23 of the Law of 21.10.1993 No. 3543-XII "On Mobilization Training and Mobilization", was not subject to military service during mobilization, as he was a student of professional higher education, the Supreme Court noted that this circumstance does not amount to exemption from military service, but only provides the right to a postponement of military service.
The existence of such a postponement does not exempt the plaintiff from performing military duty in terms of such components as registration with military enlistment offices; compliance with the rules of military registration, as well as from the likelihood of being involved in the performance of work of a defensive nature during a special period during the legal regime of martial law.
In view of the foregoing, the plaintiff cannot be called up for mobilization due to his existing legal status as a student of professional higher education.
At the same time, the right to postpone military service must be exercised by a person liable for military service by taking active steps and registering it with an authorized body (in particular, the district territorial center for recruitment and social support).
In this case, such a right can be exercised only until the person acquires the status of a serviceman.
In order to maintain special records of conscripts, persons liable for military service, reservists entitled to postponement of conscription for regular military service, military service during mobilization, and special periods, the latter are obliged to timely notify the body where they are registered with the military on cha-nges in their marital status, health status, address of residence (stay), education, place of work and position.
Thus, the right to postpone the call-up for regular military service, military service during mobilization or a special period corresponds to the obligation of conscripts, persons liable for military service and reservists to comply with the rules of military registration, in particular, to timely notify the authority of a change in their level of education.
Thus, the right to postpone the call-up for regular military service, military service during mobilization or a special period corresponds to the obligation of conscripts, persons liable for military service and reservists to comply with the rules of military registration, in particular, to timely notify the authority of changes in their level of education.
The analysis of the provisions of part 5 of Article 22 of Law No. 3543-XII gives grounds to conclude that the commander of a military unit can call up only persons liable for military service during mobilization, while only the military commissariats have such powers with regard to conscripts. The current legislation does not authorize the commander of a military unit to act contrary to the provisions of Law No. 3543-XII and Law No. 2232-XII, namely, to call conscripts for military service not on a voluntary basis (under a contract), but under mobilization.
Therefore, the plaintiff's enrollment in the military unit's lists could only take place if the plaintiff concluded a contract for military service on a voluntary basis, which, in turn, was not done. The case file does not contain evidence that the plaintiff entered into a contract for military service, i.e. on a voluntary basis.
Thus, we see that the adopted amendments to the current law were adopted taking into account the changes in the requirements of the time and the imposed martial law in Ukraine, as well as the fact that a legal analysis of the situation was carried out, a types of legal services, online lawyer services, services were provided and legal advice was also taken into account, Court proceedings.
