"Benign tumor is not cancer": The Territorial Recruitment Center refused a man a deferral due to his wife's diagnosis

The Khmelnytskyi District Administrative Court considered a dispute between a conscript and the Territorial Recruitment Center regarding the refusal to grant a deferral from conscription during mobilization. The key issue was whether the disease coded D16.0 (benign neoplasm of bones and articular cartilage) belongs to oncological diseases within the meaning of paragraph 12 of part one of article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

Circumstances of the case

The plaintiff applied to the Territorial Recruitment Center with a request for a deferral, citing that his wife has a lifelong established disability of group III, as well as the diagnosis D16.0 — benign neoplasm of bones and articular cartilage. Along with the application, he submitted medical documents, a disability certificate, a marriage certificate, as well as official letters from the Ministry of Health and the National Cancer Institute stating that the disease coded D16.0 belongs to oncological diseases.

The Territorial Recruitment Center commission refused to grant the deferral. It justified its decision by stating that the diagnosis D16.0 is a benign neoplasm, not a malignant tumor, and therefore does not belong to oncological diseases within the meaning of paragraph 12 of part one of article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization."

Considering this refusal illegal, the conscript appealed to the administrative court.

Conclusions made by the court

The court analyzed paragraph 12 of part one of article 23 of the Law of Ukraine "On Mobilization Preparation and Mobilization" and noted that this provision provides two independent grounds for obtaining a deferral.

The first applies in cases where group III disability is established precisely due to an oncological disease or other reasons defined by law.

The second ground does not require that group III disability was established specifically due to an oncological disease. It is sufficient that at the time of applying for the deferral, the wife or husband of the conscript had group III disability and simultaneously suffered from an oncological disease, mental disorder, cerebral palsy, or another paralytic syndrome.

After examining the case materials 560/1397/26, the court established that the plaintiff's wife has group III disability, and her diagnosis D16.0 according to the National Classifier of Diseases NK 025:2021 belongs to class II "Neoplasms" (C00–D48). Furthermore, official clarifications from the Ministry of Health and the National Cancer Institute confirm that benign neoplasms coded D10–D36 also belong to oncological diseases.

Under these circumstances, the court concluded that the Territorial Recruitment Center commission improperly evaluated the submitted documents and refused the plaintiff's deferral without sufficient legal grounds.

What the court decided

The court partially satisfied the claim.

It recognized as unlawful and canceled the decision of the Territorial Recruitment Center commission to refuse the deferral from conscription during mobilization. At the same time, the court obliged the Territorial Recruitment Center to reconsider the plaintiff's application for a deferral and make a new decision taking into account the legal assessment set out in the court's ruling.

The court also ordered the reimbursement to the plaintiff of the paid court fee in the amount of 1064.96 UAH and partially compensated the costs of professional legal assistance — 8000 UAH instead of the claimed 15,000 UAH.

The court separately emphasized that it cannot substitute the powers of the authorized body. Therefore, it did not oblige the Territorial Recruitment Center to directly grant the deferral to the plaintiff but determined that the proper remedy is a reconsideration of the application with mandatory consideration of the conclusions set out in the reasoning part of the decision.

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