The Military Medical Commission Recognized the Man Fit for Service in the Air Assault Forces: He Challenged the Mobilization but Lost the Case

The Zhytomyr District Administrative Court considered case No. 240/19763/25 filed by a serviceman against a military unit, the territorial recruitment and social support center, the military medical commission, and another territorial recruitment and social support center regarding the challenge of the military medical commission's conclusion on fitness for military service, the mobilization conscription order, as well as orders on enrollment in the personnel lists of the military unit and completion of basic general military training.

The plaintiff requested to declare unlawful and cancel the medical examination card and the military medical commission's certificate that recognized him fit for military service, to declare illegal the mobilization conscription order and his assignment to the military unit, as well as to cancel the orders of the military unit commander regarding enrollment in the personnel lists and completion of the basic general military training course.

Essence of the Case

The court established that the military medical commission conducted a medical examination of the conscript, based on which he was recognized healthy and fit for military service, including in the Air Assault Forces, Marine Corps, special forces units, and other military formations.

After the medical examination, by order of the head of the territorial recruitment and social support center, the plaintiff was conscripted for military service during mobilization for a special period and sent to the military unit. Based on the relevant order of the military unit commander, he was appointed to the position of cadet of the training unit, enrolled in the personnel lists, and provided with all types of support.

Subsequently, by order of the military unit commander, the plaintiff was removed from the personnel lists due to transfer to a new place of service.

In justifying the claim, the serviceman argued that his conscription was illegal because the medical examination was not actually conducted, and the conclusion on fitness for military service was unfounded. He also claimed that mobilization measures were carried out not at his place of residence or military registration.

Court's Position

The court noted that the procedure for conducting military medical expertise is determined by the Regulation on Military Medical Expertise in the Armed Forces of Ukraine, approved by the Ministry of Defense of Ukraine Order No. 402.

According to this Regulation, complaints against decisions of non-staff military medical commissions are subject to preliminary review by staff military medical commissions according to subordination. The court found that the plaintiff's medical examination was conducted by a non-staff military medical commission, which is neither a regional military medical commission nor the Central Military Medical Commission.

The court stated that there was no final decision by the Central Military Medical Commission regarding the plaintiff's fitness for military service, and therefore the administrative appeal procedure established by Regulation No. 402 was not completed. The court considered non-compliance with this procedure as an independent ground for denying the claim to cancel the military medical commission's conclusions.

The court emphasized that the determination of diagnosis, assessment of a person's health status, and establishment of the degree of fitness for military service fall within the exclusive competence of military medical commissions. Referring to the Supreme Court's practice, the court noted that it is not entitled to assess the correctness of medical conclusions or substitute itself for a specialized medical body.

Regarding the arguments about the illegality of mobilization due to the procedure being conducted not at the place of military registration, the court pointed out that the Procedure for conscription of citizens for military service during mobilization, approved by the Cabinet of Ministers of Ukraine Resolution No. 560, explicitly provides for the possibility of conscripting reservists regardless of their place of military registration.

The court also found that the case materials contain no evidence that the plaintiff had grounds for deferral from conscription or confirmation of his reservation during mobilization. Likewise, there is no evidence that during mobilization procedures he submitted documents proving unfitness for military service or lawful grounds for deferral.

Regarding the military unit orders, the court noted that they were issued based on nominal lists of reservists conscripted by the territorial recruitment and social support center, in accordance with the requirements of the Instruction on organizing personnel accounting in the Ministry of Defense of Ukraine system.

Court's Conclusions

The court concluded that the military medical commission's decision and the orders on conscription and military service are acts of individual application of one-time effect, which expired after implementation.

After the issuance of the conscription and assignment orders, new legal relations of military service arose between the parties, regulated by the Law of Ukraine "On Military Duty and Military Service" and the Regulation on the Military Service of Citizens of Ukraine in the Armed Forces of Ukraine.

The court noted that current legislation does not provide for the release of a serviceman by canceling the conscription order or the order on enrollment in the military unit. Such orders have already been executed, and their cancellation alone will not restore the violated right nor result in the release of the person from military service.

Referring to the Supreme Court's legal position, the court emphasized that the conscription procedure during mobilization is irreversible, and recognizing it as unlawful does not restore the person's status that existed before mobilization.

In conclusion, the court found that the defendants acted within their authority and in accordance with the law, and therefore no grounds for satisfying the claim were established.

The Zhytomyr District Administrative Court denied the claim in full.

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