“The procedure for conscript for military service during mobilization is irreversible, and the recognition of the conscription procedure is not entitled to be released from military service. Source: Cassation Administrative Court as part of the Supreme Court on Facebook details: the court reached such a conclusion in the case of a lawsuit against a serviceman against the district territorial center of acquisition and social support and the military unit to declare unlawful acts on the call and an obligation to make a decision on dismissal.”, – WRITE: www.pravda.com.ua
Source: Cassation Administrative Court as part of the Supreme Court on Facebook
Details: The court reached such a conclusion in the case on a lawsuit of a serviceman against the district territorial center of acquisition and social support and the military unit to recognize the unlawful acts on the conscription and an obligation to make a decision on dismissal.
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The plaintiff appealed to the court of first instance to defend his rights because he was called up for military service with violations: he did not undergo a medical examination during the conscription.
The court of first instance, and after it, the Court of Appeal was declared unlawful actions of the RTC and obliged the military unit to release the plaintiff from military service, but the Supreme Court stressed that the restoration of the violated right should “occur within the disputed legal relations with the participation of their participants.”
Literally: “The obligation of the military unit to dismiss a person from military service goes beyond the legal relationship between the district territorial center of acquisition and social support and the plaintiff on the procedure of his conscription during the mobilization, which is the subject of consideration in the case.
In the controversial legal relations, the plaintiff’s right to the proper procedure of his conscription during the mobilization was violated. The plaintiff’s chosen method of protection of the violated right, which was further applied by the courts of both instances on the consequences of the case – dismissal from military service – is ineffective, since it does not decide the validity of the act, which is taken as a result of the procedure of the plaintiff’s conscription for military service. This way of protecting the violated right will interfere with other legal relations, which are regulated by other legal norms, which were not investigated by the courts of previous instances, and will create a situation of uncognition of a judgment. ”
More details: The Armed Forces emphasized that the conscript procedure for military service during mobilization is irreversible, that is, which has already taken place, and recognition of the conscription procedure does not cause the previous position of the person called for military service unlawful.
Literally: “Therefore, the plaintiff’s chosen method of protection does not correspond to the essence of the plaintiff’s right, and the satisfaction of this requirement will not lead to the renewal of such a right, so the conclusions of the courts of both instances for satisfying the claims in this part are erroneous.
The very fact of non -medical examination during the call is not evidence of the plaintiff’s unsuitability for military service and is not a ground for dismissal from military service in accordance with Art. 26 of the Law of Ukraine “On Military Duty and Military Service”.