Postponement of mobilization: is it necessary for a conscript to appear in person at the TCC

Martial law was extended 7 times during the full-scale invasion. The events unfolding at the front give every reason to believe that this continuation, unfortunately, is not the last. Mobilization continues, legislation in this area is changing, acquiring a more relevant meaning in relation to today’s realities. The issues related to mobilization are currently the most discussed and the most acute in our society, especially for those who have all the reasons to receive a deferment from the draft or doubt whether there are sufficient reasons for it.

The main thing in this case is that a person who really has the right to deferment from the draft during mobilization must show it and prove it to the Territorial Center for Recruitment and Social Support (TCC and SP). And here is the main problem and questions that arise in connection with this – is it necessary for a conscript to appear in person at the TCC with relevant documents, or is it possible to send the relevant application by postal means, attaching all the supporting documents, and this will be enough?

For a comment and an answer to this question, IA “FACT” turned to the “Repeshko and Partners” Bar Association.

As practice shows, no matter how many controversial issues arise when applying the norms of current legislation, all of them end up in court in the form of a statement of claim, and it is the court that decides the fate of one or another disputed issue by its decision. Commenting on your extremely relevant question, I would like to cite as an example the recent decision of the court in the case of administrative proceedings dated April 15, 2024 (case No. 580/1482/24), it will provide all the answers.

The plaintiff is the father of three children under the age of 18, has the right to deferment from the draft during mobilization on the basis of para. 3 h. 1 st. 23 of the Law of Ukraine “On Mobilization Training and Mobilization” as a conscript with three minor children. In this regard, he submitted to the defendant – the local TCC and the JV an application for such a postponement with the addition of relevant documents, but he did not receive a response to this application.

Instead, the plaintiff was called by a district police officer who informed him that the TCC had applied to the national police with a statement to search for the plaintiff. The nuance of the situation is that the citizen sent an application for such a postponement to the local TCC and JV with the addition of relevant documents by means of postal communication – a registered letter with a notice of delivery. In turn, the TCC did receive the mentioned letter from the citizen. Of course, after this, the citizen filed a corresponding claim with the administrative court, because it is these courts that decide the mentioned issues.

In his lawsuit, the plaintiff requested that the inaction of the officials of the TCC and the SP be recognized as illegal in not granting him a deferment from the draft during mobilization on the basis of paragraph 3, part 1 of Article 23 of the Law of Ukraine “On Mobilization Training and Mobilization” as a conscript from among persons who have three or more minor children to support and to oblige the TCC and SP to grant him a deferment from conscription during mobilization on the specified grounds, as a conscript , who has three minor children.

By the court’s decision, the citizen’s claim was completely denied.

What mistake did the father of three minor children commit according to the requirements of the current legislation?

Clause 11 of Article 38 of the Law of Ukraine “On Military Obligation and Military Service” stipulates that conscripts and reservists in the event of a change in their marital status, health status, address of place of residence (residence), education, place of work, position shall They are required to personally notify the relevant authorities where they are on military records of such changes within seven days, including in cases determined by the Cabinet of Ministers of Ukraine, through administrative service centers and information and telecommunication systems.

If everything is clear with the centers for the provision of administrative services, then a question arises regarding information and telecommunication systems. Information and telecommunication systems are a set of software and hardware equipment connected to each other in one chain that transmits data from one point to another, simply put – servers and software. As we can see, the information and telecommunications system is not a means of postal communication.

In accordance with the second paragraph of the first part of Article 22 of the Law of Ukraine “On Mobilization Training and Mobilization”, citizens are obliged to appear on summons at the territorial recruitment and social support center for military registration of conscripts or reservists, determination of their assignment for a special period .

Similar norms are also contained in the Rules of military registration of conscripts, conscripts and reservists, appendix No. 2 to the Procedure for organizing and maintaining military records of conscripts, conscripts and reservists, approved by Resolution of the Cabinet of Ministers of Ukraine dated 12.30.2022 No. 1487. According to the Rules and Procedures, conscripts, conscripts and reservists must personally notify the authorities in which they are on military registration within seven days of the change in personal data specified in Article 7 of the Law of Ukraine “On the Unified State Register of Conscripts, Conscripts and Reservists “, as well as provide the specified authorities with documents confirming the right to deferment from conscription for military service during mobilization on the grounds specified in Article 23 of the Law of Ukraine “On Mobilization Training and Mobilization”.

Therefore, in accordance with the norms of the current legislation, the conscript must personally come to the TCC and SP and submit the original documents that give the right to postponement of the draft during mobilization.

However, in modern realities, nothing is very simple, each judge has his own separate opinion on a specific case. Disagreements in judicial practice are sometimes striking, lead to debates and are finally settled by a decision of the Supreme Court of Ukraine, but all this requires time, which is sometimes not available.

At the same time, there is another court decision dated April 29, 2024 (case No. 580/2180/24) on the claim of another citizen who, in connection with the constant care of his sick father, has sufficient grounds for postponement of conscription for military service during mobilization He provided the defendant – TCC and JV in the proper form and in accordance with the procedure established by law, all the necessary evidence that confirms the existence of circumstances that give the right to postponement. The TCC did not properly consider the claimant’s application and did not make an appropriate decision regarding the postponement of conscription for military service during mobilization, in connection with which the citizen appealed to the court with a corresponding administrative claim.

In connection with these circumstances, he asked the court to recognize as illegal the inaction of the TCC and the JV regarding the non-consideration of the plaintiff’s application to grant him a deferment from the draft during mobilization on the basis of para. 9 h. 1 st. 23 of the Law of Ukraine “On Mobilization Training and Mobilization”, as a conscript who is engaged in constant care of a sick father and to oblige the defendant to consider the claimant’s application to grant him a deferment from the draft during mobilization and to make a decision to grant the claimant a deferment from the draft under the time of mobilization for the specified reasons.

In this situation, the plaintiff also mailed to the defendant a corresponding statement about granting him a deferment from the draft during mobilization. That is, as we can see, the conditions of the case are similar to the case that we cited as an example earlier, but there are differences only in the basis of exemption from mobilization.

The citizen’s claims were partially satisfied. The inaction of the TCC and SP in considering the application of a conscript to grant him a deferment from conscription during mobilization on the basis of para. 9 h. 1 st. 23 of the Law of Ukraine “On Mobilization Training and Mobilization”, as a conscript who is engaged in constant care of a sick father, and the TCC and SP, the court obliged to consider the application of the conscript to grant him a deferment from the draft during mobilization, which was sent by means postal communication.

Making this decision, the court noted:

“… the obligation to “notify in person” and “arrive in person” are not the same in disputed legal relations. … TCC, as a subject of authority, after receiving by mail from the claimant an application for a postponement of the draft and documents to confirm this right, he was obliged to take appropriate actions regarding the execution of the relevant decision as a result of consideration of this application, but he limited himself to sending a letter to the plaintiff. “.

That is, the court determined by its decision that upon receiving a citizen’s statement, even by mail, the TCC must in any case react appropriately in accordance with its powers and the essence of the statement.

It should be noted that both of these decisions are decisions of courts of first instance. What is remarkable is that they are decisions of the same court, but passed by different judges. An appeal can be filed against them, not to mention a review at the level of the Supreme Court of Ukraine if there are grounds for this.

We are inclined to believe that the first decision – dated April 15, 2024, case No. 580/1482/24 – is more correct from the point of view of the law. The fact is that when mail is sent by postal operators – Ukrposhta or Novaya Poshta – no one checks who exactly sends the letter. The operator, accepting correspondence, does not identify the person in any way, which makes it possible for anyone to send correspondence on behalf of the conscript.

The signature of the person sending such correspondence is also not verified by anyone in any way. In addition, according to the legislation, conscripts are required to provide the TCC and SP with original documents that confirm the reasons for the postponement of conscription during mobilization. It is clear that individual documents, such as, for example, a certificate of a person’s disability, cannot just be sent somewhere by mail for a week, but can be left out of hand altogether.

Regarding the two decisions given, the final word, which of them corresponds to the letter of the law, remains with the Supreme Court of Ukraine. Unfortunately, it often happens that due to any disagreement and unclear interpretation, state bodies determine the situation in their favor, especially in such an issue as mobilization.