Student submitted an application for deferral but never received a decision: The TRC limited itself to only two letters

The Third Administrative Court of Appeal partially satisfied the student's claim, who challenged the inaction of the Territorial Recruitment and Social Support Center regarding the failure to consider his application for a deferral from conscription during mobilization due to education.

The court concluded that the TRC was obliged to consider the submitted application on the merits and make an appropriate decision, but it did not do so.

Circumstances of the case

In April 2024, a citizen submitted an application to the TRC for a deferral from conscription for military service during mobilization for the period of obtaining education. He attached documents issued by the National Technical University "Dnipro Polytechnic" as well as a copy of his passport to the application.

After that, the TRC sent two letters to the applicant. In the first, it informed that the consideration of the appeal was extended until a response was received from the educational institution regarding the enrollment of the person in the study program. In the second letter, it indicated the need for a personal appearance at the TRC to receive the deferral in accordance with the law.

Believing that his application was never considered on the merits, the citizen went to court demanding to recognize such inaction as unlawful and to oblige the defendant to consider the submitted appeal.

The Dnipropetrovsk District Administrative Court denied the claim.

Position of the appellate court

Reviewing the case, the appellate court noted that the subject of the dispute was precisely the inaction regarding the consideration of the deferral application, not the question of the plaintiff's right to receive it.

The panel of judges stated that the court of first instance went beyond the subject of the dispute and actually assessed the existence of grounds for granting the deferral, although resolving this issue is within the powers of the TRC.

The court reminded that at the time the disputed legal relations arose, Article 23 of the Law "On Mobilization Preparation and Mobilization" provided that those enrolled in professional, specialized pre-higher, and higher education studying full-time or dual forms are not subject to conscription during mobilization.

The panel also took into account the provisions of the Procedure for organizing and maintaining military registration, approved by the Cabinet of Ministers Resolution No. 1487, according to which conscripts must personally submit documents confirming the right to a deferral.

The case materials 160/18268/24 confirmed that the plaintiff personally submitted the relevant application to the TRC. The copy of the application contained the signature of the person who accepted the documents. At the same time, the defendant did not dispute the fact of receiving the application and did not provide evidence to the contrary.

Under these circumstances, the appellate court concluded that the defendant was obliged to consider the application on the merits and make a decision based on its consideration. Since this was not done, the TRC's inaction is unlawful.

At the same time, the court emphasized that it does not assess the presence or absence of grounds for granting a deferral, as this belongs to the discretionary powers of the relevant authority.

What the court decided

The Third Administrative Court of Appeal canceled the decision of the Dnipropetrovsk District Administrative Court and partially satisfied the claim.

The court recognized the TRC's inaction regarding the failure to consider the citizen's application dated April 15, 2024, for a deferral from conscription during mobilization as unlawful.

The court also obliged the TRC to consider the submitted application and make a decision based on its consideration in the manner and within the time limits established by law.

The rest of the claim was denied.

Additionally, at the plaintiff's expense from the defendant's budgetary allocations, the court fee of 3028 UAH was recovered.

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