The Territorial Recruitment Center has no right to respond with letters instead of a decision on deferral — Supreme Court

The Supreme Court, composed of a panel of judges of the Cassation Administrative Court, considered a case challenging the actions of the Territorial Recruitment and Social Support Center, which refused to make a substantive decision on requests for deferral from conscription during mobilization and limited itself to sending informational letters.

The dispute arose because the applicant requested a deferral based on paragraph eight of part one of Article 23 of the Law "On Mobilization Preparation and Mobilization" due to having an adult son with a Group I disability under his care, but instead of a substantive decision, he received only informational letters from the Territorial Recruitment Center.

Case Summary

The plaintiff twice applied to the Territorial Recruitment and Social Support Center with requests for deferral from military service conscription during mobilization. To justify his right, he referred to the fact that he supports an adult son who has been assigned a Group I disability. Copies of the military registration document, passport, medical-social expert commission certificate confirming the disability, and the son's birth certificate were attached to the applications.

In response, the Territorial Recruitment Center informed the applicant that to submit documents granting the right to deferral, he must personally appear at the center, clarify military registration data, and undergo a military medical commission. After the applicant's repeated request, he was again asked to personally appear for a medical examination and submit a complete set of documents. However, no decision was made regarding granting or denying the deferral based on the submitted applications. Considering these actions unlawful, the applicant turned to the court.

In the lawsuit, the applicant requested to recognize the refusal of the Territorial Recruitment Center to make a decision on his applications as unlawful and to oblige the center to grant him a deferral from conscription during mobilization.

Decisions of the Courts of First and Appeal Instances

The Volyn District Administrative Court, whose conclusions were agreed upon by the Eighth Administrative Court of Appeal, denied the claim. The courts reasoned that the applicant did not provide sufficient evidence of supporting an adult son with a Group I disability and therefore did not confirm the grounds for obtaining a deferral from conscription during mobilization.

Legal Conclusions of the Supreme Court

The Supreme Court noted that the authority to decide on granting deferral from conscription during mobilization belongs to the Territorial Recruitment and Social Support Centers and is exercised based on the application of the conscripted individual. Upon receiving the application and documents that, according to the applicant, confirm the right to deferral, the center is obliged to make a decision either granting the deferral or refusing it.

The court pointed out that the letters sent by the Territorial Recruitment Center to the applicant were purely informational and did not represent a substantive decision on the issue raised. Thus, the defendant effectively did not consider the submitted applications and did not make a decision either to grant or deny the deferral.

The Supreme Court emphasized that in the absence of a decision by the authority, the lower courts could not assess the sufficiency of the documents submitted to confirm the right to deferral before the center itself reviews and resolves the matter.

Assessing whether the submitted documents confirm the right to deferral is primarily a matter for the Territorial Recruitment and Social Support Center. In fact, the courts of first and appeal instances substituted themselves for the body authorized to consider such applications and resolved an issue that the defendant did not address at all.

The panel of judges in case No. 140/8613/23 stressed that within this dispute, the court cannot establish whether the person has the right to deferral from conscription or whether the documents submitted are sufficient to confirm such a right, since the corresponding decision was not made by the Territorial Recruitment Center. Under these circumstances, the proper and effective remedy is to oblige the defendant to consider the applications for deferral and make an appropriate decision based on their consideration in accordance with the law.

At the same time, the Supreme Court did not agree with the demand for direct granting of the deferral, since the question of the presence or absence of grounds for granting it must first be resolved by the Territorial Recruitment and Social Support Center.

In conclusion, the Supreme Court satisfied the cassation appeal, annulled the decisions of the courts of first and appeal instances, and issued a new ruling partially granting the claim.

The court recognized the actions of the Territorial Recruitment and Social Support Center regarding the refusal to make a decision on applications for deferral from conscription during mobilization as unlawful and obliged the defendant to reconsider these applications and make an appropriate decision based on their consideration in accordance with the law.

At the same time, the Supreme Court separately emphasized that it did not resolve the issue of the presence or absence of the plaintiff's right to deferral from conscription. The court noted that in the absence of a decision by the Territorial Recruitment Center, courts cannot assess the sufficiency of the submitted documents or establish whether they confirm the right to deferral. Such matters fall within the competence of the Territorial Recruitment and Social Support Center, which must first consider the application on the merits and make an appropriate decision.

Thus, the Supreme Court concluded that the Territorial Recruitment Center is not entitled to limit itself to sending informational letters in response to applications for deferral from mobilization. After receiving the application and documents, the authority is obliged to make a decision either granting the deferral or refusing it, and failure to make such a decision is unlawful.

The ruling enters into legal force from the date of its adoption, is final, and is not subject to appeal.

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