Convicted of a serious crime demanded to be removed from military registration: why the court refused

The Poltava District Administrative Court considered a dispute regarding the removal of a citizen from military registration due to a sentence of imprisonment for committing a serious crime. The plaintiff requested to recognize the inaction of the Territorial Recruitment and Social Support Center as unlawful for not removing him from military registration back in 2005 and to oblige the center to make the appropriate entries in the military registration documents.

The court examined the application of the previous and current versions of Article 37 of the Law "On Military Duty and Military Service," as well as the impact of legislative changes that came into force in May 2024 on the status of persons previously convicted of serious crimes.

Circumstances of the case

The plaintiff was convicted by the verdict of the Mashivka District Court of Poltava Region dated February 17, 2005, and the verdict of the Poltava Regional Court of Appeal dated June 7, 2005, for committing serious crimes, sentenced to 5 years and 6 months imprisonment with confiscation of property and deprivation of the right to hold positions related to operational activities in law enforcement agencies.

In February 2009, he was conditionally released early from serving the sentence.

After receiving a military registration document through the "Reserve+" application, the plaintiff learned that he was registered as liable for military service. He believed that according to the legislation in force at the time of his conviction, he should have been removed from military registration as a person sentenced to imprisonment for committing a serious crime.

The plaintiff stated that the Territorial Recruitment and Social Support Center did not remove him from military registration since June 7, 2005, although at that time paragraph "g" of part five of Article 37 of the Law "On Military Duty and Military Service" provided for the removal from military registration of citizens sentenced to imprisonment for serious crimes.

Therefore, he asked the court to recognize the defendant's inaction as unlawful and to oblige it to consider the issue of his removal from military registration from the specified date and to issue a military registration document with the appropriate mark.

The defendant opposed the claim. The Territorial Recruitment Center noted that after the entry into force of Law No. 3633-IX dated April 11, 2024, the grounds for removal from military registration of persons convicted of serious crimes were excluded from Article 37 of Law No. 2232-XII. In addition, the defendant emphasized that until May 18, 2024, the plaintiff did not apply with requests for removal from military registration and did not submit documents that could be grounds for making the relevant decision.

Position of the court

The court noted that the duties of maintaining military registration are assigned to territorial recruitment and social support centers, and the procedure for registration, removal, and exclusion from military registration is determined by the Law "On Military Duty and Military Service."

At the time of the plaintiff's conviction, Article 37 of Law No. 2232-XII indeed provided for the removal from military registration of citizens sentenced to imprisonment for serious crimes.

However, the court drew attention to the fact that Law No. 3633-IX dated April 11, 2024, which came into force on May 18, 2024, amended Article 37 of Law No. 2232-XII. After the amendments, the list of grounds for removal from military registration was significantly narrowed. It now includes only death or declaration of a person as deceased, termination of Ukrainian citizenship, recognition as unfit for military service, and reaching the maximum age for reserve service.

The court also took into account the provisions of the Procedure for conscription of citizens for military service during mobilization, approved by the Cabinet of Ministers Resolution No. 560 dated May 16, 2024. This normative act provides for the possibility of conscription during mobilization of persons previously convicted of imprisonment for serious crimes, except for certain categories of crimes against the foundations of Ukraine's national security.

Moreover, the court emphasized that the plaintiff did not provide evidence that he was actually removed from military registration in the past. There was also no evidence of appeals to competent authorities demanding removal from military registration or bringing registration data into compliance with the legislation.

Assessing the arguments about the non-retroactive effect of the law, the court noted that the changes made to Article 37 of Law No. 2232-XII do not have retroactive effect. They are directly applicable norms and apply to legal relations existing after their entry into force.

The court stressed that the legislator has the right to change the criteria for military registration if it is motivated by state interests. The narrowing of grounds for removal from military registration was aimed at expanding the state's mobilization resource and ensuring its defense capability under martial law conditions.

Conclusions of the court

The court concluded that after the entry into force of the amendments to Article 37 of Law No. 2232-XII, the plaintiff does not belong to the category of persons who can be removed from military registration.

The court also found no evidence that the plaintiff was previously removed from military registration or that the defendant was obliged to make such a decision in the presence of the necessary documents and application.

Considering the current legislation and the factual circumstances of case No. 440/14677/24, the court concluded that there are no grounds to recognize the inaction of the Territorial Recruitment and Social Support Center as unlawful or to oblige it to enter information about the plaintiff's removal from military registration into the Unified State Register of conscripts, persons liable for military service, and reservists.

The claim was fully denied.

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