July 16, 2024 became the final date for updating the personal data of conscripts through the territorial recruitment and social support centers (TCC and SP). More than half a year has passed since that moment, and the issue of fines for non-appearance at the TCC and SP, the procedure for receiving summonses, and the possibility of canceling resolutions on administrative offenses remains on the agenda for many citizens.
In this regard, IA “FACT” turned to the lawyers of the “Repeshko and Partners” Bar Association, who commented on specific court decisions that became precedents in cases of appeals against TCC resolutions, and revealed the main arguments that helped conscripts win in court.
Clients often turn to us with questions: is it possible to appeal a fine imposed by the resolution of the TCC? What is the position of the courts on these cases? And most importantly, what arguments can you rely on if you decide to go to court? Our practice shows that citizens’ chances of success in disputes with TCCs are not so small. The study of court decisions of the Unified State Register shows an interesting trend: in most cases, courts make decisions in favor of conscripts. In particular, out of randomly selected eight or nine decisions, only two were not in favor of the citizen. Using the example of these positive decisions, we will analyze on what grounds and in which cases the court favors the conscript.
The first decision we will consider was made by the appellate court, i.e. the second instance of the judiciary – the Third Administrative Court of Appeal, decision dated December 24, 2024, case No. 404/7622/24. Challenging the decision on the imposition of fines, the citizen filed a lawsuit against the TCC and the SP, in the justification of which, first of all, he notes that he did not receive any summons to appear before the TCC, and therefore the defendant unlawfully prosecuted him on the basis of part 3 Art. 210-1 of the Code of Administrative Offenses.
Assessing the disputed legal relationship, the appellate court notes that in accordance with Article 9 of the Code of Ukraine on Administrative Offenses, an administrative offense (misdemeanor) is an illegal, culpable (intentional or careless) action or inaction that encroaches on public order, property, rights and freedoms citizens, for the established management procedure and for which the law provides for administrative responsibility.
Administrative responsibility for the offenses provided for by this Code arises if these violations do not entail criminal liability in accordance with the law.
Article 22 of the Law of Ukraine “On Mobilization Training and Mobilization” establishes the duties of citizens regarding mobilization training and mobilization, among which is the obligation to appear upon summons at the territorial recruitment and social support center at the time and place specified in the summons.
The analysis of the cited norms of law makes it possible to come to the conclusion that the composition of the administrative offense provided for in Article 210-1 of the Code of Administrative Offenses is the non-appearance of a conscript on call without valid reasons to the territorial recruitment and social support center at the time and place specified in the summons.
Therefore, for the correct resolution of the case, taking into account the arguments of the parties, it is necessary, first of all, to establish such a circumstance as the delivery of a summons to the plaintiff, and only after that to investigate the question of the validity of the reasons for non-appearance.
As it was mentioned above, the plaintiff claims that he did not receive any summons requiring him to appear before the TCC. Instead, the appellant (that is, TCC and JV) notes that the plaintiff personally, under his signature, received a summons to summon TCC and JV at 09:00. 05/29/2024.
In order to officially clarify the circumstances of the case, the court of appeals, by its decision dated 17.12.2024, demanded from the defendant the materials of the administrative offense case, which can be used to confirm the appellant’s arguments regarding the plaintiff’s receipt of the summons.
However, within the time limit set by the court, the defendant did not provide the court with the requested evidence, as well as separate evidence regarding the delivery of the summons to the plaintiff to the TCC and SP at 09:00 a.m. 05/29/2024.
According to Article 251 of the Code of Administrative Offenses, evidence in a case of an administrative offense is any factual data on the basis of which the body (official) establishes the presence or absence of an administrative offense, the guilt of a given person in committing it, and other circumstances that have importance for the correct decision of the case. These data are established by the protocol on the administrative offense, the explanations of the person who is brought to administrative responsibility, the victims, witnesses, the opinion of an expert, material evidence, the testimony of technical devices and technical means that have the functions of photo and film shooting, video recording, including those that are used by a person who is brought to administrative responsibility or by witnesses.
The duty to collect evidence rests with the persons authorized to draw up protocols on administrative offenses defined by Article 255 of this Code.
The appellate court emphasizes that the defendant did not provide adequate evidence regarding the presence in the actions of the plaintiff of an administrative offense provided for in Article 210-1 of the Code of Administrative Offenses, such as failure to appear on summons without valid reasons to the territorial recruitment and social support center at the time and place specified in the summons , and therefore the appellate court agrees with the conclusion of the first instance court on illegality of the contested resolution.
It all ended with the fact that the appeal of the TCC and SP was dismissed, while the decision of the Kirovsky District Court Kirovohrad from October 22, 2024 in administrative case No. 404/7622/24 also remained unchanged.
The second case was considered by the Moscow District Court. Kharkiv The citizen filed a lawsuit for the annulment of Resolution No. 4 in the case of an administrative offense under part 3 of Article 210-1 of the Criminal Procedure Code of July 30, 2024, which imposed an administrative fine of UAH 17,000.00 on him.
The resolution on an administrative offense was drawn up against the citizen because he did not clarify/update/update his personal data in time and did not fulfill the obligation stipulated by the current legislation. The citizen did not fully agree with this resolution in the case of an administrative offense, he considered it illegal and unfounded, in violation of the order of arrest.
The plaintiff indicated that:
– he was not properly informed about the consideration of the administrative offense case against him at least 3 days before its consideration;
– he was forcibly brought to the premises of the TCC and SP by abducting him from the street, with the use of force against him, and the consideration of the administrative offense case against him took place with a significant violation of his rights and freedoms, as well as the right to defense and the opportunity to use a professional legal aid;
– the process of administrative detention of the Claimant, the offer to provide a military registration document, the handing over of the summons for passing the VLC took place without compliance with the legal procedure by the employees of the TCC and SP, without photo and video recording and without their providing documents confirming their authority.
At the same time, the plaintiff did not appear at the court hearing of the case, submitted an application for the hearing of the case without his participation. The defendant (TCC and JV) also did not appear at the trial, did not file a response to the claim, and was properly notified of the date and time of the trial.
After examining the case materials, the court found the following. Regarding the Claimant’s improper notification of the consideration of the administrative offense case against him at least 3 days before its consideration:
The consideration of the administrative offense case against the Claimant took place on the same day as the drawing up of the protocol on the administrative offense on July 30, 2024. Moreover, it took place in the premises of the TCC and SP, into which the Plaintiff was drawn with the use of force, in a violent way, and from which the Plaintiff was not released for some time.
Accordingly, under such circumstances, the Claimant had absolutely no opportunity to provide and prepare substantiated arguments and objections regarding his legal position, to use the professional legal assistance of a lawyer.
It should be noted that the case of an administrative offense is considered in the presence of the person who is brought to administrative responsibility. During the absence of this person, the case can be considered only in cases where there is information about his/her timely notification of the place and time of consideration of the case and if no request has been received from him to postpone the consideration of the case.
According to the provisions of Art. 277-2 of the Code of Administrative Offenses of Ukraine, a summons shall be served on a person who is subject to administrative liability no later than three days before the day of the hearing of the case in court, which shall specify the date and place of the hearing of the case. Other persons participating in the proceedings on administrative offenses shall be notified of the day of consideration of the case within the same period.
Due to the fact that the improper notification of a person about the consideration of an administrative offense case and the violation of his rights in the process of its consideration is the basis for canceling the resolution on bringing a person to administrative responsibility, the courts have repeatedly expressed relevant legal positions.
By the resolution of the Second Administrative Court of Appeal dated 05/08/2024. in case No. 642/1199/24 regarding the consideration of a similar case, the following legal position is set forth:
“The case of an administrative offense is considered in the presence of the person who is brought to administrative responsibility. During the absence of this person, the case can be considered only in cases where there is information about his/her timely notification of the place and time of the case consideration and if no request has been received from him/her to postpone the consideration of the case.”
In accordance with Article 278 of the Code of Administrative Offenses, a body (an official) when preparing for consideration of a case on an administrative offense shall resolve the following questions: 1) whether the consideration of this case is within its competence; 2) whether the protocol and other materials of the administrative offense case were drawn up correctly; 3) whether the persons participating in the consideration of the case have been notified of the time and place of its consideration; 4) whether necessary additional materials have been requested; 5) whether the petitions of the person who is brought to administrative responsibility, the victim, their legal representatives and the lawyer are subject to satisfaction.
The Supreme Court in its rulings dated 31.03.2021 in case No. 676/752/17, dated 21.03.2019 in case No. 489/1004/17, dated 30.01.2020 in cases No. 308/12552/16-a and No. 482/9/ 17, dated 06.02.2020 in the case No. 205/7145/16-a made the following conclusions:
“Enshrining the procedural guarantees of the rights of a person who is brought to administrative responsibility, including participation in the consideration of his case, the provisions of the Code of Criminal Procedure also contain certain provisions aimed at ensuring the proper implementation by competent bodies (persons) of the powers granted to them, in particular, those provided for the consideration administrative offense cases in the absence of a person who is brought to administrative responsibility, only if there is data confirming the proper notification of such a person about the place and the time of consideration of the case.
The obligation to notify a person of the place and time of the hearing of the case no later than three days before the date of the hearing of the case on an administrative offense is considered fulfilled if the person who is being prosecuted knows (is informed) about the time and place of the hearing of the case three days before the date consideration of the case. The duty of proving this circumstance is borne by the authorized official.
The purpose of the notification is to ensure the person’s participation in the consideration by the authorized state body of the case of an administrative offense.”
Thus, in this case, the consideration of the cases took place in the absence of the plaintiff, who was not timely notified of the consideration of the cases, which, due to the prescriptions of part 1 of Article 268 of the Criminal Procedure Code, excluded the possibility of the consideration of the case.
If the Claimant was not notified in advance 3 days in advance of the consideration of the administrative offense case against him, although he gave reasonable objections that he was abducted, according to the Claimant, brought to the TCC by force, all this can be considered the consideration of the administrative offense case with a significant violation of rights and the Plaintiff’s freedoms, his improper notification regarding the consideration of the case and significant violations of the process of its consideration on the part of TCC employees and SP.
Regarding the violation of the procedure for checking the Plaintiff’s documents and bringing him to the premises of the TCC and the JV, I forcefully inform you of the following:
According to the Claimant, he was forcibly brought to the premises of the TCC and SP, where they tried to force him to pass the VLK. And the process of checking documents took place in violation of the procedure established by the current legislation.
The defendant did not provide the court with any evidence that the process of administrative detention of the Claimant, the offer to provide a military registration document, and the delivery of a summons to the Claimant to pass the VLC took place with the observance of the legal procedure by the employees of the TCC and the JV, with photo and video recording and with the provision of documents confirming their powers.
Accordingly, the court concluded that this procedure was carried out without compliance with the relevant legal procedure by the employees of the TCC and the JV.
Under such circumstances, the citizen’s claim was satisfied by the court, recognized as illegal and the resolution of the TCC and SP No. 4 in the case of an administrative offense under Part 3 of Article 210-1 of the Code of Administrative Offenses dated July 30, 2024 was canceled. on the imposition of an administrative fine in the amount of UAH 17,000.00 on a person.
We analyzed court cases in detail, because it is court practice that shapes the future standards of behavior of both citizens and the authorities themselves. How the court reacts to specific cases depends on whether the actions that are now being challenged will continue to be committed. Where there is no accountability, impunity becomes the norm.
As the analysis of the decisions shows, in most cases the courts take the side of the citizens, recognizing the illegality of the TCC’s actions. This is not just a statistic, but a signal to everyone whose rights have been violated. It is important to understand: success in court is possible, but it depends on the willingness to fight for your rights. So, if you are faced with injustice, do not postpone your defense for later. You need to act here and now, because this is the only way to protect your rights.
