The Supreme Court overturned the verdict for evading mobilization due to violations by the Military Medical Commission

Can a conscript be considered as evading mobilization if a state body violated the procedure for determining his fitness for service? The Supreme Court, in the composition of the First Judicial Panel of the Cassation Criminal Court, adopted a ruling that establishes an approach to cases under Article 336 of the Criminal Code of Ukraine.

The conflict between the state duty to defend the Fatherland and the individual right to a fair medical examination often leads to judicial errors. The Supreme Court's ruling dated May 26, 2026, in case No. 537/2092/24 distinguished lawful conscription from coercion based on unlawful decisions of state bodies.

The accused was registered for military service and, according to the Military Medical Commission's conclusion dated February 19, 2024, was recognized as fit for service. On the same day, in the presence of witnesses, he refused to accept the summons requiring him to appear for deployment to a military unit.

Subsequently, the man did not appear at the assembly point, which became grounds for opening a case under Article 336 of the Criminal Code. The Kryukiv District Court of Kremenchuk found him guilty and sentenced him to 3 years of imprisonment. The Court of Appeal upheld the verdict, stating that disagreement with the Military Medical Commission does not exempt one from the obligation to appear upon summons.

The accused argued for the annulment of the verdict, stating that the courts of first and appellate instances did not properly assess his unfitness for military service due to illnesses, including bronchial asthma, arterial hypertension, thyroid disease, and spinal pathologies. These circumstances are confirmed by examination cards and medical reviews of the Military Medical Commission dated June 22, 2023, and November 17, 2023.

The defense submitted to the court evidence — a decision of the Poltava District Administrative Court dated January 22, 2025, which annulled the Military Medical Commission's conclusion of fitness due to violations of Regulation No. 402.

The Court of Appeal mistakenly considered this an insignificant factor since the annulment occurred after the date of failure to appear for the summons. However, the Supreme Court pointed out that the annulment of the Military Medical Commission's conclusion effectively renders it invalid from the moment of issuance, which completely changes the person's status at the time of the alleged crime.

Supreme Court's Conclusion

The Supreme Court analyzed legislative provisions, including Article 17 of the Law of Ukraine "On Defense of Ukraine" and Article 22 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

The Supreme Court emphasized that only citizens fit for military service by health status are subject to mobilization. Accordingly, persons recognized as unfit cannot be subject to mobilization duty.

The subject of the crime under Article 336 of the Criminal Code of Ukraine can only be a person who simultaneously:

• is a citizen of Ukraine aged 18 to 60;
• is recognized as fit for military service by health status;
• has no legal grounds for deferment or exemption from conscription.

Since the administrative court decision annulled the previous Military Medical Commission's conclusion on the accused's fitness, he effectively lost the characteristics of a crime subject.

The absence of a proper subject excludes the presence of a criminal offense as a whole.

Prejudicial significance of the court decision and constitutional guarantees

The court also referred to Article 90 of the Criminal Procedure Code of Ukraine, according to which a court decision that has entered into legal force and establishes legally significant circumstances has prejudicial significance for criminal proceedings.

Since the administrative court established violations in the medical examination procedure and requirements of Article 19 of the Constitution of Ukraine regarding actions of state authorities strictly within their powers, this excludes the legality of conclusions forming the basis of the accusation.

The Supreme Court additionally emphasized that according to Article 3 of the Constitution of Ukraine, a person, their life and health are recognized as the highest social value, and state authorities, including Territorial and Military Medical Commissions, are obliged to act solely on the basis, within the powers, and in the manner prescribed by law.

The decision highlights the importance of adhering to the Military Medical Commission procedure and the priority of administrative court decisions regarding fitness/unfitness for service when considering criminal cases under Article 336 of the Criminal Code.

If the Military Medical Commission's conclusion is issued with violations (incomplete examination, ignoring diagnoses, absence of necessary specialists, etc.), it must be challenged in the district administrative court. This is not just a fight for health but an effective legal tool that can eliminate criminal risks.

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