Publication date: 20.05.2024
active and purposeful military lawyer with more than 4 years of experience
TCC and JV 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 a certain judicial 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 deferment 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 procedure of TCC and JV, it is a body that registers persons for special registration and can deny the enterprise such registration if it finds errors in the decision on booking from the Ministry of Economy.
Read also: TCC started calling citizens who have reached the age of 25 to clarify data
The booking procedure provides a clear list of such errors:
• incorrect information about a person's name;
• year of birth;
• VOS (profile);
• name (full and abbreviated);
• location and EDRPOU code of the enterprise.
An inaccuracy in the civil position, military rank, name of the TCC and joint venture at 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 listed among the reasons for canceling the postponement. Such a reason is primarily the release 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.
You may be interested in reading articles on the following topics: collection of debt from wages recovery of wages through court recovery of wage arrears recovery of wages recovery of wages in court recovery of wages through court
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. Here are some examples of such court decisions.
1. 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 for the sake of the current reservation. The TCC and SP ignored the reservation documents, the person refused to receive a "combat" summons, about which an act was drawn up refusal The person turned to the court with a demand to declare the refusal of the TCC and the JV to grant a postponement illegal 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 "recognizing the unlawful inaction of the TCC and the JV, which consists in not granting a deferment from the draft for mobilization and to oblige the TCC and the JV to make a decision on granting a person a deferment from the draft for mobilization" on the basis of the Law of Ukraine dated October 21, 1993 No. 3543-XII "On mobilization training and mobilization".
2. Somewhat similar, but not so positive in terms of the outcome (at the time the case was considered, the person's reservation had expired) is a case that was considered by the Kharkiv District Administrative Court (not appealed). Thus, the plaintiff, after receiving the reservation, applied to the TCC and SP to update the military registration document and place it on special registration. However, the TCC and JV did not recognize the plaintiff's booking and handed him a summons to pass the VLC.
The plaintiff contested such inactivity of the TCC and the JV, and the court, partially satisfying the claim, established that the TCC and JV did not provide any norm that would give it the right to assess the legality of accepting the orders of the Ministry of Economy, and went beyond its powers by not fulfilling the current order of the Ministry of Economy.
Provision of the reserved claim
The Kharkiv case is also interesting in that within it the application to secure the claim by means of a ban on calling up the plaintiff for military service during the reservation period was satisfied.In addition to the specified case, there are also other positive examples in the court register where the courts granted similar applications.
For example, the Zhytomyr District Administrative Court (not appealed) in its decision prohibited the TCC and SP during the case review from taking actions related to the mobilization of a booked person, and came to the conclusion that "ensuring mobilization in Ukraine is an extremely important task in wartime, however in the specific case under consideration, mobilization should be a balance between the private interest of the mobilized and the public interest of the state. It is possible to find such a balance only after considering the merits of the case and making a court decision."
Another noteworthy procedural decision is the decision of the Donetsk District Administrative Court (not appealed). Thus, the court, satisfying the application of the reserved person, motivated its decision by the fact that "if the applicant is called up for military service during mobilization, in a special period, he will acquire a new legal status of a military serviceman, which will make it impossible to exercise the right to postponement, as well as make it impossible to execute the decision court, if it is accepted in favor of the plaintiff, since it is impossible to grant a postponement/reservation from conscription for military service during mobilization to a person who is already a military serviceman."The court also added that "...at this stage of the process, the court is not competent to provide an assessment of the legality of the actions of the TCC and the SP regarding the issuance of a subpoena for dispatch and the adoption of other actions or decision-making, however, in this case, the court states that without taking measures to ensure the claim, mobilization measures against the applicant will be completed, and therefore any decision in this case will not restore the violated rights that he emphasized."
Releasing the reserved person from the service
Indicative, but currently unpopular among the courts, is the position of canceling the order on mobilization and excluding the booked person from the list of personnel of the military unit.
Thus, the Seventh Administrative Court of Appeal (not appealed), canceling the decision of the first instance, made several important conclusions, in particular:
• not only a conscripted citizen has an obligation to notify the TCC and SP about the relevant booking, but also the TCC and SP are obliged to check and have information about booked persons in order to prevent illegal actions against the person;
• an extremely short period of time from the date of issuance of the booking order to the moment of conscription, so the plaintiff did not have an objective opportunity to provide the TCC and SP with relevant documentary confirmations of granting him a deferment from conscription;
• it is the authority of the TCC and SP to issue certificates of postponement of conscription for the period of mobilization and wartime.
Based on the results of the case review, the appellate court decided to recognize as illegal and annul the order of the TCC and SP regarding conscription for military service, as well as the order of the military unit regarding enrollment in the personnel lists, and ordered the military unit to exclude the plaintiff from the personnel lists.
A similar decision was reached by the Third Administrative Court of Appeal (not appealed) based on the results of consideration of the case on the claim of the booked person. In particular, the appellate court, leaving unchanged the decision of the court of first instance, found that the duty to verify the existence of grounds for postponement of conscription during mobilization for military service rests with the TCC and SP, and therefore it is they who must verify the presence or absence of the claimant's right to postponement of conscription for mobilization.Conclusions
The category of disputes related to the mobilization of reserved persons continues to be replenished with new approaches and views of the courts on solving existing problems. The current state of affairs demonstrates that the courts do not always "automatically" support the position of the TCC and SP, but also, in the balance of interests, hear the arguments of the conscript, especially when they are convincingly supported by documents.
Considering the level of attention to the issue of mobilization, it can be predicted that official positions will appear this year already at the level of the Supreme Court, which will then be adhered to by lower courts. There will also be adjustments in the approaches and positions of the courts due to expected changes in mobilization legislation and reservation procedures.
