The Territorial Recruitment Center mobilized the father of a child with a disability for consideration of a deferment application: the court canceled the conscription order

The Kirovohrad District Administrative Court considered an administrative case against the Territorial Recruitment and Social Support Center and the military unit regarding the recognition of unlawful actions related to conscription during mobilization, cancellation of conscription orders and enrollment in the personnel lists of the military unit, as well as the obligation to exclude the plaintiff from the personnel lists and release him from military service.

The plaintiff justified the claim by stating that before the start of mobilization measures, he submitted an application for deferment along with documents confirming the legally established grounds, but before a decision was made by the authorized commission, he was sent to a military medical commission and then conscripted into military service.

Essence of the case

The court established that before undergoing the military medical commission, the plaintiff applied to the Territorial Recruitment and Social Support Center with a request for deferment from conscription during mobilization. The application was accompanied by documents which, in his opinion, confirmed the right to deferment.

Despite this, the Territorial Recruitment and Social Support Center sent the plaintiff to the military medical commission, which recognized him fit for military service. Subsequently, an order for conscription during mobilization was issued, and the next day the military unit issued an order to enroll the plaintiff in the personnel lists.

The plaintiff noted that his deferment application was effectively not reviewed by the commission before the conscription decision was made, and therefore the Territorial Recruitment and Social Support Center had no legal grounds to complete the mobilization procedure.

The defendants opposed the claim, arguing, among other things, that after the plaintiff acquired the status of a serviceman, the conscription procedure is irreversible, and therefore cancellation of mobilization orders cannot be an appropriate remedy.

Position and conclusions of the court

After examining the case materials No. 340/6879/25, the court noted that according to the Law of Ukraine "On Mobilization Preparation and Mobilization" and the Procedure for conscription of citizens for military service during mobilization approved by the Cabinet of Ministers of Ukraine Resolution No. 560, a conscript who has submitted a deferment application enjoys procedural guarantees defined by law.

The court pointed out that paragraph 60 of Procedure No. 560 provides for the obligation of the commission to consider the deferment application and make a corresponding decision. Until such a decision is made, the issue of conscription cannot be finally resolved.

Furthermore, the court emphasized that paragraph 63 of Procedure No. 560 explicitly prohibits sending a conscript who has submitted a deferment application for a medical examination to determine fitness for military service before the commission's decision, except in cases directly provided for by this paragraph.

The court found that at the time the plaintiff was sent to the military medical commission, his deferment application was already under consideration, but the authorized commission had not yet made any decision.

Under these circumstances, the Territorial Recruitment and Social Support Center had no legal grounds either to send the plaintiff to the military medical commission or to issue an order for his conscription during mobilization.

The court noted that undergoing the military medical commission and consideration of the deferment application are independent procedures with different legal significance. Determining a person's fitness for military service does not eliminate the obligation of the state body to first resolve the issue of the right to deferment.

Evaluating the defendants' arguments about the irreversibility of the mobilization procedure, the court referred to the legal position of the Supreme Court set out in the ruling dated February 5, 2025, in case No. 160/2592/23, but concluded that it does not apply to the disputed legal relations.

The court noted that in the case cited by the defendants, the dispute concerned different factual circumstances related to violations of the conscription procedure, whereas in this case the decisive factor is that the conscription order was issued after the deferment application was submitted but before it was reviewed by the authorized commission.

In the court's opinion, this situation does not concern a formal violation of a separate stage of the mobilization procedure but the absence of legal grounds for the Territorial Recruitment and Social Support Center to complete the conscription procedure.

The court emphasized that agreeing with the defendants' position would effectively mean legalizing an unlawful decision simply because it has already been executed. Such an approach would contradict Article 19 of the Constitution of Ukraine, which obliges state authorities to act solely on the basis, within the powers, and in the manner prescribed by law.

Moreover, the court stated that the principle of irreversibility of the conscription procedure cannot be considered a basis for depriving a person of the right to effective judicial protection when conscription is carried out contrary to a direct legislative prohibition.

The court also noted that the plaintiff did not ask the court to decide on his release from military service on grounds defined by military service legislation. The claims were aimed specifically at verifying the legality of the conscription order and the related order of the military unit enrolling him in the personnel lists.

Considering this, the court concluded that the chosen method of judicial protection corresponds to the nature of the violated right and is aimed at eliminating the consequences of an unlawful individual act.

As a result of the case review, the court recognized the actions of the Territorial Recruitment and Social Support Center regarding the conscription of the plaintiff during mobilization as unlawful, canceled the conscription order and the military unit's order enrolling him in the personnel lists, and also obliged the military unit to exclude the plaintiff from the personnel lists and release him from military service.