The call to military service during mobilization is irreversible, and recognition of the call procedure does not lead to the fact that the previous position of a person called for military service an illegal situation through liberation.
This was noted by the administrative court of cassation in the Supreme Court in the case of a claim of a soldier against the district shopping center, a military unit in order to declare illegal calls and an obligation to decide on dismissal, the press service of the Supreme Court.
It is noted that:
- The plaintiff in the court of first instance was associated with their violation with their inefficiency with the order of his call for military service, which consists in an unintentional medical examination during the draftmate;
- The court of first instance, with which the court of appeal agreed, announced the illegal actions of the district shopping center on the plaintiff’s call during mobilization and obliged the military unit exempted from military service, which, in the opinion of the courts of both cases, is the proper restoration of the violated rights of the plaintiff;
- However, the Supreme Court emphasized that the restoration of the violated right should occur in controversial legal relations with the participation of their participants. At the same time, the obligation of a military unit to dismiss a person from military service goes beyond the framework of legal relations between the district shopping center and the plaintiff on the order of his call for military service during mobilization, which is the subject of consideration in this case.
The Supreme Court stated that the plaintiff’s right to his / her call was violated for his military service during mobilization, and how he was elected by the courts of both cases was to protect the violated right – dismissal from military service – “it is ineffective because it does not solve the reliability of the law.
This method of protecting the violated right will interfere with other legal relations, which are regulated by other legal norms that were not investigated by the courts of previous cases, and will create a situation with the decision of the decision, the supervision of the Supreme Court, indicated in the notification of the press service.
The Supreme Court emphasized that the call for military service during mobilization is irreversible, that is, which already took place, and the recognition of the call procedure does not lead to illegal military service.
Consequently, the chosen method of protecting the plaintiff does not correspond to the essence of the plaintiff’s right, and the satisfaction of this requirement will not lead to updating such a right, therefore, the conclusions of the courts of both cases to satisfy the statements in this part are erroneous, -prof of the Armed Forces.
The fact of a non -medical examination during conscription is not an evidence of the plaintiff’s intransigence for military service and is not a basis for dismissal from military service in accordance with art. 26 of the Law of Ukraine ”on military service and military service, added to the Supreme Court.
Source: Racurs
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