Top 10 interesting court decisions related to martial law and mobilization in Ukraine. Part 2.Challenging the agenda, deferment from mobilization, appealing the results of the military medical commission, monetary payments to the military, and others

• Challenging the summons
• Postponement from mobilization
• Appealing the results of the MMC
• Courts related to monetary payments to military personnel
• Collection of compensation from the Russian Federation
• Dismissal from military service

We continue the topic we started about interesting court decisions related to martial law and mobilization. In Part 1, we wrote about administrative and criminal offenses, such as failure to appear on the agenda, responsibility of enterprise managers for violations of the order of military accounting at the enterprise, offenses of military personnel (drinking alcohol), and collaboration activities. In this part, we will talk about…

Challenging the summons

Can a summons be declared unlawful in court? More than one court decision has been made on this topic in recent years with the already established practice. The answer is no, but the controversy has not subsided so far.

On March 14, 2022, a citizen filed a lawsuit against the head of the district TCKiSP with the district administrative court of Ivano-Frankivsk. The subject of the dispute was the recognition of the unlawful and invalid summons issued to him for dispatch.

Courts of all instances (district, appellate and cassation) were of the same opinion and refused the plaintiff. The position of the judges is as follows - the summons is not a decision of the subject of authority in the sense of Article 19 of the Code of Administrative Procedure of Ukraine, since such a summons does not establish the rights and obligations of the plaintiff. The obligation of a person liable for military service to appear when summoned to the appropriate military commissariat is established by the Law of Ukraine “On military duty and military service”, and not by a summons, as the plaintiff believes. The specified agenda is only a means of notifying citizens for their arrival on a certain date of the corresponding military commissariat. More details in the register of court decisions: https://reyestr.court.gov.ua/Review/103711949

Postponement from mobilization

In the article «Delay from mobilization, exemption from mobilization. Booking: grounds and procedure» we talked about those who are eligible for a deferment or release. We warned and again we remind you that if you have such a right, then the necessary documents must be submitted to the TCKiSP in advance or, in extreme cases, during the medical examination. And in the event of an unlawful refusal to defer, it is necessary to appeal against the illegal actions of the military registration and enlistment office in court.

Theory is theory, but in practice there are all sorts of unpleasant stories. One of these happened in 2022. The man, after visiting the military enlistment office and passing the military medical commission, was called up for military service, despite the fact that during the passage of the military military registration and enlistment office he notified the military enlistment office that he was the adopter of a minor child deprived of parental care and had the right to a deferment.

The court, after analyzing all the available materials, concluded that the plaintiff was not subject to conscription during mobilization in February 2022 and did not give voluntary consent to be called up for military service. The judge partially satisfied the requirements of the mobilized and declared illegal the actions related to conscription and sending to a military unit. He ordered the military registration and enlistment office to grant a deferment. But, most importantly in this case, he refused to oblige the military unit, represented by its commander, to make a decision regarding the early dismissal of the plaintiff from military service, because the procedure for dismissing a serviceman who is not subject to conscription from military service is not provided for by any laws or other regulatory legal acts. The moral of everything is this: it is easy to get into the army if you do not know the laws, and it is impossible to quit even if you know them. Judgment: https://reyestr.court.gov.ua/Review/107078413

Let's study another example of what we always tell everyone about, that all your actions for submitting documents for deferrals, exemptions, booking or passing the VVK to the military registration and enlistment office must be recorded officially and on time. In no case do this just in words, giving the documents to someone unknown. That is, everything should happen by accepting documents to the office (department of incoming correspondence, secretary) of the TCKiSP with a stamp and date of receipt on your second copy or by submitting documents certified by you with a description of the attachment of the letter by mail. Otherwise, it could happen the way it happened in this case.

The applicant was evacuated from the Zhytomyr region to the Zakarpattia region at the start of the war. As a migrant, he became registered with the Mukachevo RTTsKiSP, where he was mobilized for territorial defense. He claims that the VVK did not pass, and his statement about the presence of a delay from mobilization as a booked person was not taken into account. And later he was sent to the war zone without any preparation.

The court in the process found that the plaintiff did not submit documents for a deferment to the military registration and enlistment office. As well as other statements, complaints, petitions. In view of the above, he was called up for military service during mobilization on legal grounds, because he did not provide the defendant with proper supporting documents that could serve as a basis for granting him a deferment, determined by the current legislation of Ukraine. Full text of the court decision: https://reyestr.court.gov.ua/Review/106432834

Appealing the results of the MMC

It is possible to appeal against the decision on suitability or unfitness for military service to a higher MMC and to the court. Here is one such judgment. The serviceman appealed to the Zaporozhye District Administrative Court with a demand to recognize as unlawful and cancel the decision issued by the certificate of the military medical commission at the military unit. He indicated that he had health problems, which made it difficult to perform military service. In support of this, he provided copies of the conclusions and consultations of medical specialists.

The District Court, having regard to the position of the Supreme Court rendered earlier, concluded that it was not within the power of the court to assess the diagnosis as to whether it falls under the articles of the schedule of diseases, conditions and physical disabilities that determine the degree of fitness for military service. And that if the plaintiff had doubts about the correctness of the conclusion about the degree of his suitability for military service, he had the right to apply to the Central Military Medical Commission to review the relevant decision.

The court decided that the disputed certificate of the military medical commission is legitimate and the final decision on suitability can be made by the central MMC.

Note that in all similar cases, the court has the right to check the legality of the conclusion of the IHC only within the limits of compliance with the procedure for adopting this conclusion and compliance with the laws. However, the court cannot make its own assessment of the presence and severity of diseases. More details in the register of court decisions: https://reyestr.court.gov.ua/Review/107201617

A similar situation, but with a different ending, happened to a mobilized disabled person of the 3rd group. As the plaintiff notes, MMC specialists did not examine him, but only formally rewrote the diagnoses that he had previously and entered personal data. Doctors did not try to understand the essence, no referrals were issued for additional examinations. Then the next day he was sent to serve in a military unit. The plaintiff in the lawsuit also notes that he did not undergo medical examinations and did not pass the necessary tests for the presence of hepatitis, HIV, Rh factor and others approved in Order No. 402 of the Regulations on military medical examination. Repeatedly appealed to the defendant with a request to conduct a second medical examination, but without result.

The court, having examined the case materials, noted that the defendant had not proved the appropriate and admissible evidence of the legitimacy of the decision made in relation to the plaintiff. The plaintiff had two different MMC certificates with the same date and number, but with different conclusions. The defendant did not send the plaintiff for additional examinations. The testing procedure was not followed. In view of the foregoing, the court considered it necessary to cancel the decision of the MMC dated March 10, 2022. Judgment: https://reyestr.court.gov.ua/Review/106710188

Yes, a valid decision. But at the same time, the military unit had to prove its case, and the decision was made only after six months.

Courts related to monetary payments to military personnel

The military personnel have not only the duty to protect the state, but also the right to receive a decent reward for this. But despite this, they or their relatives have to seek legal bonuses, additional payments and compensation in the courts. Let's take a look at one of these cases.

Upon dismissal from service, the serviceman did not receive all the payments due to him, so he was forced to go to court with a lawsuit against the military unit. It stated that, when calculating payments due upon dismissal from service, they did not take into account the additional monthly remuneration provided for by the Decree of the Cabinet of Ministers of February 28, 2022 No. 168. The court, having considered all the circumstances of the case, recognized the actions of the military unit as illegal and ordered pay the outstanding amount. Full text of the judgment: https://reyestr.court.gov.ua/Review/108608354

Unfortunately, people die in war. By Decree of the Cabinet of Ministers No. 168 of February 28, 2022, the state undertook to pay one-time assistance in the amount of UAH 15 million to the families of the victims. This assistance is distributed in equal parts to all recipients defined in Art. 16-1 of the Law of Ukraine "On the social and legal protection of military personnel and members of their families". The parents of the deceased, one of the spouses, children who have not reached the age of majority, persons who were in support are entitled to receive it.

And at this stage, potential recipients of assistance have many legal problems in establishing the circle of persons who have or do not have the right to receive funds. Without a precise definition of these persons, relatives are denied. You have to go to court to declare the father of the deceased missing, whom no one has seen for 40 years, or, for example, to prove that the deceased parents of the deceased having different surnames or patronymics (yes, there are errors in the documents) were the father and mother of a particular person and etc.

Let's consider such a case. A man and a woman have been living in the same family since 2017 without marriage registration. During this time, they had a son. In April 2022, the man was called up for service, where less than a month later he died in a training center due to rocket fire. For more than three years the applicant had been unemployed, supported by the deceased, and at the time of applying to the court she was on maternity leave. The fact of residence by one family was established only on August 2, 2022 by another court. This lawsuit was filed in order to establish the fact that the deceased was in the maintenance, in order to receive assistance from the state in the amount of 15 million hryvnias in accordance with the already mentioned resolution of the Cabinet of Ministers No. 168 of February 28, 2022, which she was denied.

After examining the submitted documents and questioning the witnesses, who confirmed that the applicant and the deceased lived in the same family, had a common household, had a common budget, the judge granted the application and recognized the legal fact of being kept. Judgment: https://reyestr.court.gov.ua/Review/106604869

Collection of compensation from the Russian Federation

With the beginning of the war of the Russian Federation against Ukraine, millions of citizens were forced to leave their homes, many lost their homes and property, some lost their lives. Kharkov was among the most affected cities. The war led to material losses and moral suffering of the inhabitants of the city. One of which sued the attacking country for significant moral compensation.

The plaintiff filed a lawsuit against the aggressor country for moral damages in the amount of 35,000 euros. He motivated him by the fact that as a result of constant shelling of the city he was forced to leave it. The result of this was the loss of property and habitual way of life, which in turn led to material and moral damage.

The claim was fully satisfied. In making its decision, the court took into account the Hague Convention on the Laws and Customs of War on Land and its annexes, the Geneva Convention for the Protection of Civilian Persons in Time of War, and the Resolutions of the UN General Assembly of 2022. Also, the fact that, in accordance with Art. 9 of the Law of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal Regime in the Temporarily Occupied Territory of Ukraine”, compensation for material and moral damage caused as a result of the temporary occupation of the state of Ukraine to citizens of Ukraine is fully assigned to the state that exercises the occupation.

Despite the fact that this decision provides for monetary compensation, the question of actually receiving it remains open. Judgment: https://reyestr.court.gov.ua/Review/108230978

A similar case was considered by the Poltava District Court of the Poltava Region. The applicant did not even leave the locality where he lived before the invasion, but nevertheless experienced anxiety, fear and stress. The court satisfied all the plaintiff's claims for moral compensation from the Russian Federation. Register of court decisions: https://reyestr.court.gov.ua/Review/108621493

A radically opposite opinion was expressed in a similar case, which indicates that the practice of applying the existing Ukrainian and international legislation has not yet fully developed. The story is very similar to the previous ones, only it happened not in Kharkov, but in Kyiv. The plaintiff also suffered moral suffering as a result of shelling and street fighting, she had to hide in the subway and sleep in the bathroom at home, and subsequently leave the city and go abroad, where she had to live in a refugee camp. All this was accompanied by stress, moral suffering, material costs. Based on the foregoing, I asked the court to recover moral compensation from the Russian Federation in the amount of UAH 100,000.

The court denied the claim, citing the absence of any mechanisms or other interstate agreements between Ukraine and the Russian Federation on compensation for damage to individuals and legal entities caused as a result of military aggression of the Russian Federation on the territory of Ukraine. And the existing international and national legal acts do not contain provisions on the emergence of a temporarily displaced person's right to compensation for the moral suffering suffered by him due to such a displacement from the aggressor state.

Consequently, the plaintiff's desire for compensation for moral damage caused to her by the armed aggression of the Russian Federation does not give rise to a legitimate expectation of receiving such compensation for moral damage from a certain country without a special legislative act. At the same time, the materials of the case do not contain evidence that, due to the armed aggression of the Russian Federation, the plaintiff suffered damage to health or property. At the same time, the court partially points to the same laws, resolutions and conventions as in the cases described above, but, alas, the decisions are completely different. The plaintiff filed an appeal. Court case: https://reyestr.court.gov.ua/Review/108199195

Not only individuals go to court. In recent months, more and more cases have appeared in which legal entities (enterprises) that have suffered losses in the form of destruction of buildings or damage to other property seek compensation from the Russian Federation. Novaagro Ukraine LLC applied to the Economic Court of the Kharkiv Region in connection with the damage to its non-residential premises due to the bombardment by the armed forces of the aggressor country and, as a result, recovered material damage in the amount of UAH 977,419.06. More details at the link: https://reyestr.court.gov.ua/Review/106939659

Dismissal from military service

While serving in the army, many military personnel do not even realize that they have the legal right to be dismissed from service for many legal reasons. These include: reaching the service age limit, deteriorating health, family circumstances, and others specified in Part 4 of Art. 26 of the Law of Ukraine "On military duty and military service".

One of the above circumstances occurred with a serviceman who filed a lawsuit against the military unit in which he served. In it, he asked to recognize as unlawful the refusal (let us clarify that the refusal was first verbal, then such a refusal was provided at the request of a lawyer) in his dismissal from the service. The interested party justifies his right to dismissal by the fact that his wife is a person with a disability. The court, having studied the materials of the case, came to the only correct conclusion about the existence of grounds for the dismissal of the plaintiff from military service under paragraphs. “d”, paragraph 2, part 4, article 26 of Law No. 2232-XII, since his wife is a person with a disability of group III and ordered the military unit to make an appropriate decision. Court case: https://reyestr.court.gov.ua/Review/106853303

In another case, another conscript tried to appeal against refusals to dismiss him from military service. In a lawsuit, he asked to declare illegal actions of officials of the Operational Command, the Ministry of Defense of Ukraine, and the Kropyvnytskyi GTCKiSP and oblige them to dismiss him from service. Claims that he applied with reports to the above defendants, as he has the right to dismissal due to family circumstances, namely: the presence of a spouse from among persons with disabilities; the presence of one of the parents of the spouse from among persons with disabilities of the 2nd group. Reports were not accepted, or were not considered for spurious reasons.

The defendant, represented by the military commissariat, believed that the mobilization of the soldier was carried out within the framework of the law. Documents on the existence of a delay were not provided. They have no right to dismiss him from service.

The Ministry of Defense clarified in the response that the plaintiff did not serve in the positions of their department. It is not in their competence to make such decisions. A soldier with such requirements should directly apply to the commander of the military unit where he is serving.

The military unit, in its defense, indicated that in the period from 05/12/2022 to the present, the plaintiff did not apply to the command of the military unit in which he is doing military service with a corresponding report, and therefore no illegal actions on the part of the command of the military unit are seen.

The court concluded that since the plaintiff is serving in a certain military unit, therefore, his immediate superior is the commander of the military unit, who is empowered to make a decision on the plaintiff's report, and not the leaders of the defendants against whom the claim was brought. At the same time, no evidence was provided by the plaintiff with a report to the commander of the military unit to the court. The administrative claim was denied. Judgment: https://reyestr.court.gov.ua/Review/107331447

This problem could be solved with a positive result for the serviceman in a shorter time, provided that he was provided with legal assistance.

Therefore, in order not to waste time and not repeat the mistakes of others, you should always contact the qualified lawyers of Alibi law firm!