CAS SC: courts must verify whether the death of a serviceman is related to service — case on deferment from mobilization

The Administrative Cassation Court within the Supreme Court in case No. 160/13713/25 considered a dispute regarding the refusal to grant a deferment from conscription during mobilization to a person whose brother died while serving in the military.

Essence of the dispute

The disputed issue is the legality of the decision to refuse the plaintiff a deferment from conscription during mobilization due to the death of his brother, who was a serviceman.

The verification of grounds for granting deferment from conscription during mobilization and its formalization is carried out by the Territorial Centers for Recruitment and Social Support (parts 7-9 of Article 23 of Law No. 3543-XII).

Grounds for deferment

Paragraph 4 of part 3 of Article 23 of Law No. 3543-XII provides four grounds for granting deferment from conscription, namely if a close relative listed in this provision:

• died during measures to ensure national security and defense, repulse and deterrence of armed aggression of the Russian Federation in Donetsk and Luhansk Regions,
• died during ensuring national security and defense, repulse and deterrence of armed aggression against Ukraine during martial law;
• went missing during measures to ensure national security and defense, repulse and deterrence of armed aggression of the Russian Federation in Donetsk and Luhansk Regions;
• went missing during ensuring national security and defense, repulse and deterrence of armed aggression against Ukraine during martial law.

The circumstances of the serviceman's death or disappearance are key for granting deferment to a close relative from conscription.

List of documents

Subparagraph 4 of paragraph 2 of Appendix 5 to the Procedure for conscription of citizens for military service during mobilization, for a special period, approved by the Cabinet of Ministers of Ukraine Resolution dated 16.05.2024 No. 560 (hereinafter - Procedure No. 560) establishes the list of documents submitted by conscripts to obtain deferment from conscription during mobilization.

To obtain deferment for a close relative, it is necessary to submit:

• an application in the form according to Appendix 4 to Procedure No. 560,
• documents confirming family ties (including a certificate of a family member of the deceased Defender of Ukraine or a certificate of a family member of the deceased war veteran, which indicates the provision of the Law of Ukraine "On the Status of War Veterans, Guarantees of Their Social Protection" under which the status was granted, or an extract from the Unified State Register of War Veterans), an extract from the Unified Register of Missing Persons under special circumstances, documents confirming the fact of death during measures to ensure national security and defense, repulse and deterrence of armed aggression of the Russian Federation in Donetsk and Luhansk Regions or ensuring national security and defense, repulse and deterrence of armed aggression against Ukraine during martial law (including notification or copy of the official investigation report, or extract from the order on exclusion from personnel lists specifying the grounds).

Thus, the certificate of a family member of the deceased serviceman is the main document confirming the status of a family member of a person who died as a result of military aggression and allows receiving corresponding benefits.

The Court's assessment

The Administrative Cassation Court of the Supreme Court noted that the legislator’s introduction of the relevant ground for exemption from mobilization is indeed understood as recognizing the need to ensure a certain degree of social justice for families who have already lost close relatives due to the war during which their relatives defended the homeland.

The case materials show that the plaintiff’s brother was a serviceman whose death occurred during military service. Therefore, within the meaning of paragraph 4 of part 3 of Article 23 of Law No. 3543-XII, the plaintiff’s brother could have been involved in measures to ensure national security and defense, repulse and deterrence of armed aggression of the Russian Federation in Donetsk and Luhansk Regions, or ensuring national security and defense, repulse and deterrence of armed aggression against Ukraine during martial law.

Court decision

Thus, the Administrative Cassation Court of the Supreme Court concluded on the necessity to send the case for a new trial to the court of first instance, since the lower courts did not investigate the causal link between the death of the mobilized serviceman and the performance of his military duty during measures to ensure national security and defense, repulse and deterrence of armed aggression of the Russian Federation in Donetsk and Luhansk Regions, or during ensuring national security and defense, repulse and deterrence of armed aggression against Ukraine during martial law.

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