Conscription appealed, but there is no turning back: what the Supreme Court decided in the case of illegal mobilization

In the conditions of a full-scale war, the issue of mobilization has become one of the most sensitive and at the same time difficult for Ukrainian society. Every day, thousands of men receive summonses, undergo medical examinations or immediately end up in military units. Against this background, the question arises especially acutely – are the rights of citizens always respected during mobilization? Does a person have the opportunity to protect himself from illegal actions by the territorial centers of recruitment and social support?

It is these issues that have recently again been in the center of attention of the legal community after the high-profile decision of the Supreme Court of Ukraine. It was adopted on February 5, 2025 in case No. 160/2592/23, which became indicative for the entire country. The plaintiff – a mobilized citizen – frankly stated in court that his rights were grossly violated even at the stage of conscription. According to him, he did not undergo a medical examination at all, and therefore should not have been admitted to the service.

This case immediately caused a wide resonance among lawyers and human rights defenders, because it raises a very difficult question – where exactly is the line between the state’s right to mobilize and the obligation to observe legality even in wartime? Lawyers of the “Repeshko and Partners” Bar Association commented on this decision and shared their own vision of what this precedent actually means for all citizens of Ukraine.

Indeed, the decision of the Supreme Court of Ukraine, which was adopted on February 5, 2025 in case No. 160/2592/23, is indicative in the light of the correlation between mobilization processes in the country and compliance with the law and citizen’s rights. According to the plot of the case, the man filed a lawsuit against the military unit, asking them to declare the actions of the TCC and SP regarding his draft for military service during mobilization illegal; to oblige the military unit in which he is currently located to make a decision to release him from military service as a member of the Armed Forces of Ukraine of this military unit.

Justifying his demands in court, the plaintiff noted that illegal actions were committed against him regarding his draft for military service during mobilization, because during the draft he was not given a medical examination of his state of health.  The court of first instance, which considered the case – the Kharkiv District Administrative Court, satisfied the husband’s claim. At the same time, the decision of the Second Appellate Administrative Court dismissed the appeal of the military unit, and the decision of the Kharkiv District Administrative Court remained unchanged.

The courts of the first and second instance proceeded from the fact that the TCC and SP were not provided with any evidence of conducting a medical examination of the plaintiff and taking into account the results of such an examination when the plaintiff was drafted for military service. Therefore, the TCC and SP lacked legal grounds to conclude that the plaintiff was fit for military service due to his health condition, and therefore, accordingly, illegal actions were taken regarding the conscription of the man for military service during mobilization.

The courts of both instances noted that the proper restoration of the plaintiff’s violated rights is the restoration of the person’s position that existed before such a violation of rights, and therefore it is necessary to oblige the military unit to make a decision on the dismissal of the man from the military service of the personnel of the Armed Forces of Ukraine of the military unit. The courts also noted that renewing the time limit for the plaintiff to apply to the court is necessary and legitimate given the fact that the man has been serving in the Armed Forces of Ukraine since March 23, 2022, which indicates the seriousness of the reasons for the plaintiff missing the time limit for applying to the court for the protection of his rights.

Challenging the court decisions, the military part, among other things, referred to the fact that an effective way to protect the plaintiff’s violated rights is to conduct a medical examination by the military medical commission and eliminate the gap that was made during the plaintiff’s enlistment in March 2022, and in the future, if there is a corresponding opinion of the military medical commission, the defendant will make a decision on dismissal based on the law.

The court of cassation examined the case materials and established the following. In accordance with the order (for the military unit) of the commander of the military unit dated 03/24/2022 No. 11, the plaintiff was called up for military service on 03/23/2022 for mobilization. In the opinion of the Supreme Court, the court decisions of the courts of both instances in this case are subject to review in terms of the plaintiff’s compliance with the deadline for filing an administrative claim with the court and the correctness of the application by the courts of the previous instances of part five of article 22, article 23 of the Law of Ukraine “On mobilization training and mobilization”, part five of article 1, point 2 of part four of article 26 of the Law of Ukraine “On military duty and military service” in the context of the chosen method of protection of the plaintiff’s violated right.

According to the first part of Article 122 of the Civil Code of Ukraine, a lawsuit may be filed within the period of appeal to the administrative court established by this Code or other laws. According to the provisions of the second part of Article 122 of the Civil Code of Ukraine, a six-month period is established for applying to an administrative court for the protection of the rights, freedoms and interests of a person, which, unless otherwise established, is calculated from the day when the person learned or should have learned about the violation of his rights, freedoms or interests.

The special time limit for applying to the court in cases concerning the acceptance of citizens for public service, its completion, dismissal from public service is a one-month period (part five of Article 122 of the Civil Code of Ukraine). According to the provisions of paragraph 17 of the first part of Article 4 of the Civil Service of Ukraine, military service is a type of public service, therefore, disputed legal relations arose regarding the acceptance of the plaintiff for public service, and therefore, in view of the fifth part of Article 122 of the Civil Service of Ukraine, the one-month period for filing a lawsuit in court is applicable in this case.

The second part of Article 122 of the Civil Code of Ukraine clearly defines the moment with which the start of the counting period for applying to the administrative court is connected, namely from the day when the person learned or should have learned about the violation of his rights, freedoms or interests. When determining the beginning of the period for applying to the court, he finds out the moment when the person actually learned or had a real opportunity to learn about the existence of the corresponding violation (decision, action, inaction), and not when he found out for himself that certain decisions, actions or inaction in relation to him constitute a violation. We would like to remind you that ignorance of a violation due to indifference to one’s rights or unwillingness to learn about the actual status of one’s right (interest) is not a valid reason for missing the deadline for applying to the court.

Neither in the statement of claim, nor in the motion to renew the term of appeal to the court, the plaintiff did not indicate when he learned about the violation of his rights, while the date when the plaintiff should have learned about the violation of his rights is March 23, 2022 – the date of the plaintiff’s draft for military service on mobilization. The plaintiff appealed to the administrative court with a lawsuit against the military unit on February 11, 2023, that is, more than 10 months after the day when he should have learned about the violation of his rights.

As we can see, the Supreme Court of Ukraine clearly indicated that a citizen has only one month from the date of such mobilization to appeal against the illegal acts of mobilization for military service. As can be seen from the materials of the case, the plaintiff, applying to the court of first instance with a statement of claim, asked to renew the deadline for applying to the court, referred to the introduction of martial law in Ukraine and the legal conclusions set forth in the Supreme Court ruling in case No. the validity of the reasons for missing the deadline for filing this claim with the administrative court. The Supreme Court agreed with the conclusions of the courts of previous instances that there were grounds for the plaintiff to renew the time limit for filing this lawsuit with the court.

Regarding the very essence of the claims, returning to the circumstances of the case, the plaintiff, turning to the court of first instance for the protection of his rights, associated their violation with non-observance of the order of his conscription for military service, which consists in the plaintiff’s failure to pass a medical examination during conscription. From the content of the provisions of Article 23 of the Law of Ukraine “On Mobilization Training and Mobilization”, it can be seen that conscripts who, among other things, are recognized as fit for military service due to their health according to the conclusion of the military medical commission, are subject to conscription for military service during mobilization.

It should be noted that the fifth part of Article 22 of the Law of Ukraine “On Mobilization Training and Mobilization” provides that the specifics of the medical examination of conscripts and reservists during mobilization, for a special period, are determined by the Ministry of Defense of Ukraine together with the Ministry of Health of Ukraine. The issue of medical examination is regulated by Section II of the Regulation on military medical examination in the Armed Forces of Ukraine, approved by the order of the Ministry of Defense of Ukraine dated 14.08.2008 No. 402. It provides that the medical examination includes the study and assessment of the state of health and physical development of citizens at the time of the examination in order to determine the degree of suitability, in particular, for military service, with the issuance of a written conclusion (resolution).

In this Regulation, fitness for military service is defined as the state of health and physical development of citizens that allows them to perform official duties prescribed by statutes and instructions in a specific military specialty in the form of the Armed Forces of Ukraine and other military formations in peacetime and wartime. A medical examination is conducted by the VLK in order to determine the suitability, in particular, for military service of conscripts, conscripts, conscripts, reservists (candidates for reservists).

Medical examination of conscripts is carried out by the decision of the military commissar of the VLK of the military commissariats. Each conscript is examined by a surgeon, therapist, neuropathologist, psychiatrist, oculist, otorhinolaryngologist, dentist, dermatologist, and, upon medical indications, by doctors of other specialties (paragraph 3.1 of Section II of Regulation No. 402). After the end of the medical examination during mobilization, the VLK issues one of the following resolutions regarding the conscript: “Suitable for military service”; “Temporarily unfit for military service (specify the date of re-examination)”; “Unsuitable for military service with exclusion from military registration” (paragraph 3.8 of Section II of Regulation No. 402).

As it was established by the courts of previous instances, in the contested court decisions and the parties did not dispute, during the call-up of the plaintiff for military service upon mobilization, the plaintiff’s fitness for military service was not established based on his state of health, which violated the procedure for the call-up of the plaintiff for military service during mobilization. Therefore, in disputed legal relations, the claimant’s right to the proper procedure of his conscription for military service during mobilization is violated.

The method chosen by the plaintiff to protect the violated right, which was subsequently applied by the courts of both instances following the outcome of the case, – dismissal from military service – is ineffective, because it does not resolve the legality of the act, which is adopted as a result of the procedure of enlisting the plaintiff for military service. The court emphasized that the plaintiff chose an inappropriate way of protecting his rights. In addition, the fact that the plaintiff did not pass a medical examination during his enlistment is not evidence of the plaintiff’s unfitness for military service and is not a reason for dismissing the plaintiff from military service in accordance with Article 26 of the Law of Ukraine “On Military Duty and Military Service”, which defines an exclusive list of such reasons. At the same time, the court drew attention to the fact that in the statement of claim the plaintiff did not mention his state of health, instead, in the court session dated 05.06.2024, he noted the absence of diseases that would indicate his possible unfitness for military service.

Thus, the claim for the obligation of the military unit to make a decision on the dismissal of the plaintiff from military service does not correspond to the essence of the plaintiff’s violated right, and the satisfaction of this claim will not lead to the restoration of such a right, and therefore the conclusions of the courts of both instances about the satisfaction of the claim in this part are erroneous.

In the context of the above, the court emphasized that the procedure of conscripting a conscript for military service during mobilization is irreversible, that is, one that has already taken place, and the recognition of the conscription procedure as illegal does not cause the restoration of the previous position of the person conscripted for military service.

Similarly, conducting a medical examination of the plaintiff by the military medical commission in the manner determined by Regulation No. 402 will also not affect the restoration of the plaintiff’s violated right in the context of the violated procedure of the plaintiff’s draft for military service, which is, in fact, the subject of the dispute in this case. Based on the above, the Supreme Court of Ukraine partially satisfied the cassation appeal of the military unit, the claim regarding dismissal from military service was refused.

Once again, we draw your attention to the main conclusion of the court in the case, the essence of which is as follows – the procedure of conscripting a conscript for military service during mobilization is irreversible, that is, one that has already taken place, and the recognition of the conscription procedure as illegal does not lead to the restoration of the previous position of the person conscripted for military service. Unfortunately….