Publication date: 29.05.2024
The TCC Committee may refuse to grant an extension for any reason, as the Cabinet of Ministers of Ukraine did not specify the grounds for refusing an extension.
The TCC Committee may refuse to grant an extension for any reason, but this is not the case with the Cabinet of Ministers' Resolution 560, which does not specify specific reasons for refusal.
Under the TCC, the Commission has very broad powers to grant or deny extensions to persons requesting them, except for those reserved for the Agency.
For example, the Government approved the procedure for calling up citizens for military service during mobilization by Resolution No. 560 of May 16.
It establishes the procedure for postponement of military service during mobilization and its registration.
This process is currently the only law that establishes a mechanism for determining whether a person is granted a deferment.
Regarding the deferment, the Law on Enhanced Mobilization only mentions this call-up order and does not directly answer the question of the reasons for refusing to defer.
"Consideration and registration of the grounds for granting a deferment from military service during mobilization is carried out by the MCC," is all the law says.
As a rule, a regulatory act establishes, at least in general terms, a list of grounds for refusal of the authorities to satisfy a citizen's request.
For example: Examples: "incomplete" or "inappropriate" documents, errors in registration, etc.
However, Resolution No. 560 does not list any grounds for refusal.
At the same time, the Law of Ukraine on Administrative Procedures, which establishes principles such as rationality, rule of law and transparency, does not apply to the TP.
Thus, Resolution 560 simply provides for the establishment of a committee consisting of the following members to consider the issue of deferment of conscription in the district (city) TCC:
- The chairman of the committee is the head of the district (city) MCC (separate department).
- The committee consists of representatives of district organizations, structural units (education and science, healthcare, social protection, child welfare, administrative service centers), city state administration (military administration).
If there are grounds for deferment, a person liable for military service (except for conscripts) personally submits an application to the head of a district (city) CMC or its department in the form of attached documents confirming the right to deferment.
These documents or copies thereof, certified in accordance with the established procedure, are listed in the annex to the resolution.
The Commission considers the submitted application and the received documents and, if necessary, assesses the legality of the grounds for granting the deferral and provides relevant information confirming the applicant's right to deferral by filling out an application at the state authorities or using information from the open e-mail to register.
The Committee is obliged to consider the received application and the document confirming the right to deferral within 7 days from the date of receipt, but no later than the next day after receiving information on applying to the state authorities.
Based on the review of the received documents, the Committee will decide whether to grant or deny the deferral.
The Committee's decisions shall be formalized in a protocol.
The Committee's decision is communicated to the applicant by telephone, electronic communication or mail no later than the next day after the decision is made.
In case of a positive decision, the conscript is issued a certificate of deferment from service in the form given in Appendix 6.
If the deferment is denied, the conscript is notified of the denial in writing, stating the reasons, in the form given in Annex 7.
The Annex states that the committee must indicate the reasons for the refusal, but may also indicate these reasons at its own discretion after the decision of the Cabinet of Ministers.
Such decisions may be appealed in court.
If the committee decides to postpone the draft, the conscript will be sent for a medical examination to determine his fitness for military service.
In case of loss of grounds for granting a postponement of conscription (amendments), the commission may cancel (amend) the previously adopted decision, which shall be notified in writing to the applicant no later than the day following the decision.
Determination by the method specified in the form of Annex 10.
Thus, Resolution 560 does not contain any specific information regarding the list of grounds for refusal to postpone, which will lead to the fact that the court will have to assess the legality of the Commission's decision in case of appeal by the person.
The question arises as to how to judge.
Whether the decision of the Commission in the TCC was lawful, i.e. whether it complied with Article 560 of the Law on Mobilization and Settlement.
The problem concerns not only reserve personnel.
Accordingly, Resolution No. 560 stipulates that the Commission will not consider granting deferrals to persons enrolled in state authorities, other state bodies, local governments, enterprises, institutions, and associations.
As I have already mentioned, I would like to remind you that by the Cabinet of Ministers' Resolution No. 560, we established additional conditions for obtaining a deferment from conscription for care (permanent care).
At the same time, as the MPs emphasized, some ministerial decisions do not comply with the law on mobilization.
Thus, we can see that the changes were made not only in accordance with the current law, but also taking into account changes in the requirements of the time and the introduction of martial law in Ukraine, as well as the fact that a legal analysis of the situation, analysis of the situation by a lawyer.
To analyze the situation, we will analyze the documents and have the documents reviewed by a lawyer's opinion and a legal opinion issued.
