A serviceman will not be dismissed from service, even if the court признає мобілізацію незаконною - рішення ВС
Kyiv • UNN
Even if the mobilization is признає незаконною, the serviceman will not be звільнено зі служби. The procedure of призову is незворотною, therefore the визнання її протиправною does not поновлює the previous state. Such a рішення ухвалив the Верховний Суд.
The establishment by a court of the fact of illegal mobilization does not allow the dismissal of a soldier from service, because the procedure for calling up a conscript for military service during mobilization is irreversible, that is, one that has already taken place, and the recognition of the call-up procedure as illegal does not lead to the restoration of the person's previous position. This is stated in the decision of the Administrative Court of Cassation of the Supreme Court, reports UNN.
Details
As noted in the report, the serviceman filed a lawsuit against the TCC and the military unit to признання the actions regarding the call-up as illegal and the obligation to make a decision on dismissal from service.
The plaintiff, обращаясь to the court of first instance for protection of his rights, associated their violation with non-compliance with the procedure for calling him up for military service, which consists in the plaintiff not passing a medical examination during the call-up for military service. The court of first instance, with which the court of appeal agreed, признал the actions of the district territorial recruitment center and social support regarding the conscription of the plaintiff for military service during mobilization as illegal and obliged the military unit to dismiss him from military service, which, in the opinion of the courts of both instances, is a proper restoration of the plaintiff's violated rights
However, the Supreme Court emphasized that the restoration of the violated right must take place within the disputed legal relations with the participation of their participants. The obligation of the military unit to dismiss a person from military service goes beyond the legal relations between the TCC and the plaintiff regarding the procedure for his conscription for military service during mobilization, which is the subject of consideration in this case.
The Supreme Court emphasized that the procedure for calling up a conscript for military service during mobilization is irreversible, that is, one that has already taken place, and the recognition of the call-up procedure as illegal does not lead to the restoration of the previous position of a person called up for military service. Therefore, the method of protection chosen by the plaintiff does not correspond to the essence of the plaintiff's violated right, and the satisfaction of this claim will not lead to the restoration of such a right, therefore, the conclusions of the courts of both instances regarding the satisfaction of the claims in this part are erroneous
The mere fact of not undergoing a medical examination during conscription is not evidence of the plaintiff's unfitness for military service and is not a basis for dismissal from military service.
Recall
The Verkhovna Rada approved in the first reading draft law No. 12442 on criminal liability for violation of the rules of mobilization and medical examination for heads of TCC, heads and members of the VCC.
