See more
Publication date: 21.05.2024
active and purposeful military lawyer with more than 4 years of experience
Mobilization of reserved workers
The issue of mobilization of citizens of Ukraine continues to be one of the most urgent. This is understandable, because against the background of the increase in the needs of the Armed Forces of Ukraine, consideration of the new draft law "on mobilization" and questionable actions of employees of the TCC and JV, a person wants to know his legal rights and obligations.
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
Reserved employees are not subject to conscription
At the legislative level, the list of categories of citizens who are not subject to conscription for military service during mobilization is established. Among them are reserved employees of enterprises, institutions and organizations. As you know, reservation is the granting of a temporary postponement of conscription for military service to employees of state authorities, enterprises that are assigned mobilization tasks, that produce goods to meet the needs of the Armed Forces and that are critically important for the state. In effect, reservations allow businesses to operate during wartime, as workers remain in their positions and continue to do work. Despite this, there are cases when even reserved workers are mobilized for military service. Are such actions legal and what to do?
First of all, it should be noted that, as a general rule, persons who have a deferment can actually be called up for military service. But, this takes place only if there is a person's consent. At the same time, this exclusion does not apply to reserved employees, since the Law of Ukraine of October 21, 1993 No. 3543-XII "On Mobilization Training and Mobilization" (hereinafter - Law No. 3543) does not provide for the consent of reserved employees for their mobilization.In addition, the Law of Ukraine dated March 25, 1992 No. 2232-XII "On Military Duty and Military Service" (hereinafter - Law No. 2232) contains a provision according to which reservists and conscripts are called up for military service during mobilization, which are in reserve and are not reserved in the established order for the period of mobilization.
Therefore, the law actually establishes a mandatory ban on the mobilization of reserved workers. That is, even if such persons consent to the draft, their acceptance into the service is prohibited.
How to protect your rights as a reserved person
Unfortunately, in some cases, TCC and SP employees turn a blind eye to this and still issue mobilization orders to reserved employees, which is a consequence of their conscription and referral for military service. There are two ways to protect your rights - pre-trial and judicial.
1. In the first case, you can try to complain to the Ministry of Defense of Ukraine about the actions of TCC and SP employees and insist on the cancellation of the order on military service. However, this method does not always give the desired result. Usually, they receive a formal refusal to satisfy the complaint, referring to the lack of grounds for dismissal from the service, because there is no such grounds for dismissal as a reservation.
Military accounting: management technique. Special issue No. 2, 2023
Order at a good price
2. The most effective way to solve this problem is the second one — filing a lawsuit in court. Although today there is already a sufficiently large number of court decisions regarding the appeal of orders on the conscription of reserved persons, there is no unified legal position. Therefore, there is both positive and negative judicial practice.
Analysis of some decisions in which the main positions regarding the mobilization of the reserved are highlighted
1) Decision of the Khmelnytskyi District Administrative Court of September 15, 2022 in case No. 560/6478/22 (remained unchanged after review by the Court of Appeal).
According to the circumstances of the case, the plaintiff was booked for the period of mobilization and for wartime under a limited liability company, that is, he was granted a deferment from conscription for military service during mobilization for a period of 6 months. At the same time, the TCC and SP did not find out that the plaintiff is not subject to conscription for military service during mobilization, as he is reserved for the period of mobilization and for wartime under a limited liability company, and also that the plaintiff was granted a deferment from conscription for military service under mobilization time for a period of 6 months.
The court established that the provisions of Article 23 of Law No. 3543 regarding the postponement of conscription for military service during the mobilization of reserved employees are imperative, exhaustive and do not provide for additional conditions or alternatives other than those specified in the law.Therefore, in this case, the court limited itself only to the analysis of Article 23 of Law No. 3543, which provides for the non-alternative postponement of reserved employees, as a result of which the order of the head of the district TCC and SP regarding the draft and referral for military service of the plaintiff was canceled.
2) Decision of the Lviv District Administrative Court dated October 31, 2023 in case No. 380/8981/23 (appeal appeal is ongoing).
This decision is one of the examples where the court analyzes the legal nature of such a document as an "order" and the possibility of its cancellation. In this case, the court determined that the order of the head of the TCC and SP is an act of individual action against the plaintiff, that is, an act of one-time application. Since by the time the case was resolved, the contested orders had exhausted their effect as a result of the plaintiff's mobilization and subsequent referral to military service, they are not subject to cancellation.
Re-booking of employees - read in the magazine "KADROVYK.UA"
For justification, the court refers to the decision of the Constitutional Court of Ukraine dated June 23, 1997 No. 2-zp in case No. 3/35-313 and dated April 22, 2008 No. 9-рп/2008 in case No. 1-10/2008, which states, that legal acts of a non-normative nature (individual action) relate to individuals and are designed for their personal use, and after implementation, they exhaust their effect.
3) The decision of the Rivne District Administrative Court dated September 15, 2023 in case No. 460/13851/23 (the decision has entered into legal force).In contrast to the above position, the court in this case came to the conclusion that in view of the obvious illegality of the act of individual action contested by the plaintiff, which although and exhausts its effect by the fact of execution, its cancellation will not violate the stability of public-legal relations and the principle of legal certainty, but on the contrary will indicate the inadmissibility of illegal actions by the recruitment center during the mobilization of conscripts. Therefore, the court satisfied the claim and canceled the order.
Other statements of the court deserve attention. Thus, the court noted that paragraph 6 of the resolution of the Cabinet of Ministers of Ukraine dated March 3, 2022 No. 194 "Some issues of reservation of conscripts under the legal regime of martial law" (the resolution became invalid based on the resolution of the Cabinet of Ministers of Ukraine No. 76 of 27.01.2023) (further — Resolution No. 194, Resolution No. 76) explicitly stipulates that the Ministry of Defense organizes, through the General Staff of the Armed Forces, delivery of extracts from the orders of the Ministry of Economy to the territorial centers of recruitment and social support within one day.
The court came to the conclusion that the defendant was fully aware of the plaintiff's deferment from military service as a reserved employee. But despite this, an order for conscription was still issued.
Although the decision refers to an outdated normative legal act on reservation (Resolution No. 194), the new Resolution No. 76 also stipulates that the General Staff of the Armed Forces within three days brings the decision of the Ministry of Economy on reservation to the attention of the relevant territorial recruitment and social support centers. Therefore, you can also use such an argument.
4) Decision of the Zaporizhzhya District Administrative Court dated October 19, 2023 in case No. 280/5782/23 (appeal is pending).
Justifying the cancellation of the order on the conscription of a person for military service, the court noted that the plaintiff cannot be responsible for the appropriateness of providing the TCC and SP with information about the postponement of conscription, since such a procedure depends on communication between the company where the plaintiff works, the General Staff of the Armed Forces, the Command of the Ground Forces of the Armed Forces of Ukraine and the corresponding territorial center of recruitment and social support, and not from the actions of the plaintiff.
5) Decision of the Chernivtsi District Administrative Court dated January 10, 2024 No. 600/6799/23-a (the decision has not entered into force).
There is another position regarding who is responsible for providing information to TCC and JV regarding the fact of booking. Taking into account the provisions of Law No. 2232, the court found that the plaintiff's right not to be drafted (not to be drafted) for military service during mobilization corresponds to his duty to comply with the rules of military registration. That is, the plaintiff was obliged to personally notify the TCC and SP about his place of work and position, and provide documents confirming his right not to be called up during mobilization.
According to the court, the imperative of the legal norm (paragraph 2, part 1, article 23 of Law No. 3543) could be applied in the event that the TCC and SP had relevant information about the immunity of the plaintiff in relation to military service, and the plaintiff had to be active in this mutual the process of collecting relevant information.Since the plaintiff did not provide such information to the TCC and SP, the latter was deprived of the opportunity to find out whether the plaintiff has the corresponding right not to be drafted, there are no grounds for canceling the order on his conscription for military service.
In addition, as the court noted, the impossibility of canceling the order lies in the fact that after its issuance new legal relations of military service arose, which are determined by another law - Law No. 2232. It, in particular, does not provide for dismissal from military service by canceling the draft order and about assignment to a military unit. Therefore, since the order has already been implemented, its cancellation without making a corresponding decision on dismissal from military service will not restore the initial state and will not lead to the protection of the plaintiff's rights and interests.
So, as we can see, the courts do not have the same position on the issue of protecting reserved workers from mobilization. Probably, this trend will exist until the Supreme Court does not form a single legal opinion. Even in spite of this, you need to go to court and defend your rights. But it is necessary to approach this in a balanced way - to build the right defense strategy in order to prove to the court the illegality of the actions of the TCC and the JV.
