Court in Kyiv cancels TCC fine of 17 thousand UAH due to unproven proper delivery of summons

The Shevchenkivskyi District Court of Kyiv city considered an administrative lawsuit challenging the decision of the Territorial Recruitment and Social Support Center to hold a person administratively liable under part three of Article 210 of the Code of Ukraine on Administrative Offenses (CUAO). The dispute concerned the issue of proper notification of the conscript about the summons to the TCR, as well as the legality of imposing a fine of 17,000 UAH for failure to appear upon summons.

Case circumstances

The plaintiff applied to the court demanding to cancel the TCR decision imposing an administrative penalty, close the proceedings due to the absence of an administrative offense, and recover court costs from the defendant. The claim was based on the fact that the decision was made in violation of legal requirements, and the case materials did not contain proper evidence of the administrative offense or proof of proper notification of the summons to the TCR.

From the case materials, it appears that on January 20, 2025, the head of the TCR issued a decision to hold the person administratively liable under part three of Article 210 of the CUAO due to failure to appear at the territorial recruitment center upon a summons dated November 18, 2024. The basis for the fine was an alleged violation of legislation on defense, mobilization preparation, and military registration.

At the same time, the plaintiff stated that on July 3, 2024, he updated his registration data through the electronic application "Reserve+", including notifying about a change of actual residence. According to him, he did not receive any summons or postal notification at his actual place of residence and learned about the search only after a phone call from a police officer. During the TCR proceedings, he provided his current address and explained that he was not properly notified about the need to appear.

The case materials did not contain the summons itself, evidence of its delivery, postal notifications of delivery or refusal to receive, or any other proof of proper notification of the plaintiff. The defendant did not submit a response to the claim or provide any evidence to refute the plaintiff's arguments.

Court conclusions

The court noted that according to points 1 and 8 of part two of Article 2 of the Administrative Procedure Code of Ukraine, administrative courts verify whether decisions of authorities were made on the basis, within the powers, and in the manner defined by the Constitution and laws of Ukraine, and whether they are justified considering all circumstances of the case.

Referring to parts two and three of Article 7 of the CUAO, the court emphasized that proceedings in administrative offense cases must be conducted based on strict adherence to legality, and administrative measures may only be applied within competence and in exact accordance with the law.

The court established that the subject of the appeal was the TCR decision to hold a person administratively liable for violating the procedure for updating military registration data. The court thoroughly analyzed the Law of Ukraine "On Mobilization Preparation and Mobilization", the Procedure for conscription during mobilization approved by Cabinet of Ministers Resolution No. 560 dated May 16, 2024, and legislation regarding residence registration.

The court noted that according to point 34 of Procedure No. 560, the summons must be sent to the address of residence reported by the person during data updating. According to point 41 of this Procedure, proper confirmation of notification is either personal delivery of the summons or confirmation by the postal operator of delivery, refusal to receive, or absence of the person at the address reported to the TCR.

In case No. 761/4128/25, it was established that the plaintiff updated his data via the "Reserve+" app and reported his actual place of residence. However, the defendant did not provide any evidence that the summons was sent to that address. The court specifically emphasized that the address reported by the conscript during data updating is decisive for proper notification according to the special norms of Procedure No. 560.

The court also considered the Law of Ukraine "On the Unified State Register of Conscripts and Reservists" and concluded that after updating data in the state register, the defendant had no factual grounds to summon the person for data clarification, as such data had already been updated within the legally established period.

The court separately stressed that according to part two of article 77 of the Administrative Procedure Code of Ukraine, the burden of proof of the legality of the authority's decision lies with the defendant. At the same time, the defendant did not submit a response or provide any evidence of proper notification of the plaintiff. Considering part four of Article 159 of the Administrative Procedure Code, the failure to submit a response without valid reasons was regarded by the court as factual acknowledgment of the claim.

The court concluded that the absence of evidence of proper notification of the person about the summons to the TCR excludes the possibility of establishing the elements of an administrative offense. Under these circumstances, the claim was satisfied, the TCR decision imposing the fine was canceled, and the administrative offense proceedings were closed due to the absence of an offense.

Additionally, the court recovered from the defendant in favor of the plaintiff court fees amounting to 605.60 UAH at the expense of budget allocations.

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